Amicus Curiae Brief — Good News Club v. Milford Central School

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No. 99-2036 |

IN THE

SUPREME COURT OF THE UNITED STATES

THE GOOD NEWS CLUB, ET AL.,

Petitioners,

Vv.

MILFORD CENTRAL SCHOOL

On Writ of Certiorari to the

United States Court of Appeals for the Second Circuit

BRIEF FOR THE STATES OF ALABAMA, IOWA,

LOUISIANA, MISSISSIPPI, NEBRASKA, OHIO,

SOUTH CAROLINA, TENNESSEE, TEXAS, UTAH,

AND VIRGINIA, AS AMICI CURIAE, IN SUPPORT

OF PETITIONERS

BILL PRYOR

Attorney General of Alabama

MARGARET L. FLEMING

JOHN J. PARK, JR.

CHARLES B. CAMPBELL’

Assistant Attorneys General

Counsel of Record"

OFFICE OF THE ATTORNEY GENERAL

STATE OF ALABAMA

11 South Union Street

Montgomery, Alabama 36130-0152

(334) 242-7300

Counsel for Amicus Curiae,

The State of Alabama

(Additional Counsel listed

on Inside Front Cover)

Additional Counsel for Amici Curiae

THOMAS J. MILLER

Attorney General of lowa

Hoover State Office

Building

Des Moines, lowa 50319

(515) 281-5164

RICHARD P. IEYOUB

Attorney General of

Louisiana

State Capitol, 22nd Floor

Baton Rouge, Louisiana

70804-9005

(225) 342-7013

MIKE MOORE

Attorney General of

Mississippi

P.O. Box 220

Jackson, Mississippi 39205

(601) 359-3796

DON STENBERG

Attorney General of

Nebraska

Department of Justice

2115 State Capitol

Lincoln, Nebraska 68509

(402) 471-2682

BETTY D. MONTGOMERY

Attorney General of Ohio

30 East Broad Street

17th Floor

Columbus, Ohio 43215

(614) 466-4940

CHARLES M. CONDON

Attorney General of South

Carolina

P.O. Box 11549

Columbia, South Carolina

29211

(803) 734-3970

PAUL G. SUMMERS

Attorney General of

Tennessee

425 Fifth Avenue North

Nashville, Tennessee

37243-0485

(615) 741-3491

JOHN CORNYN

Attorney General of Texas

P.O. Box 12548

Austin, Texas 78711-2548

(512) 463-2100

JAN GRAHAM

Attorney General of Utah

P.O. Box 140854

Salt Lake City, Utah

84114-0854

(801) 366-0180

MARK L. EARLEY

Attorney General of

Virginia

900 East Main Street

Richmond, Virginia 23219

(804) 786-2071

QUESTIONS PRESENTED

1. Whether a public school that permits speakers to

use its facilities after school hours to instruct “in any

branch of education, learning or the arts,” to “benefit the

welfare of the community,” and to “promote the morals of

children,” but forbids speakers whose speech it deems to

be too religious from using its facilities, engages in

viewpoint discrimination in violation of the Free Speech

Clause of the United States Constitution.

2. Whether a governmental official's determination

whether speech is “a discussion of morals from a religious

viewpoint” (which is deemed to be permissible speech) or

is “religious instruction” (which is deemed to be

impermissible speech) unconstitutionally entangles the

state with religion in violation of the Establishment

Clause of the United States Constitution.

TABLE OF CONTENTS

Page

iach sisninisaiieniininniaiindestiisienindeeieiiabiaciaaatadpadeelad i

pL me Ee Te EP il

pg fT tee eee ae eR Re Ny ee Se iv

Brief for the States of Alabama, Louisiana,

Mississippi, Nebraska, Ohio, South Carolina,

Tennessee, Texas, Utah, and Virginia, as Amici

Curiae, in Support of Petitioners ......... Silidianmeaililiainiesementialee

Interest of Amici Curiae..............0....0000. SEEN Sano ieee l

Summary of Argument.......................065. . lena

ESLER Ae SET Ee shah a idecola

|. The Decision of the Second Circuit Conflicts

With This Court’s Precedent and Sanctions

Governmental Suppression of Speech from a

EE ee 5

A. This Court Has Consistently Required

Viewpoint Neutrality Toward Religious

Speakers in Limaved Public Fora Created by

Public Schools and Universities. ..............0....0........6

B. The Decision of ‘the Court of Appeals

Conflicts With This Court's Precedent and

Censors Religious Speech. ..............0......... 10

Il. Requiring Public Officials To Discriminate

Between Protected Religious “Speech” And

Allegedly Unprotected “Worship” or “Religious

Instruction” !s Unworkable and Unconsti-

EEE wATP eee wml Ty LED 16

ili

TABLE OF CONTENTS — Continued

Page

Ill. Censorship of Petitioners’ Religious Views Was

Not Necessary To Obey the Establishment

Clause and Displayed Governmental Hostility

TT a cinirninitceciennnieisitenilintiaiaiieimeniiiniieanaiensieniaeitl 18

A. Censorship of Petitioners’ Viewpoint Was

Not Necessary to Obey the Establishment

B. Censoring Petitioners’ Religious Viewpoint

Suggests Governmental Hostility Toward

STII cst iether tte iteaeatendinsliasiadl 21

IV. Public Officials Need Clear Guidance And

Workable Rules To Uphold Governmental

Neutrality Toward Religion............................... ipiiledied 22

ETT TONE IE a A sedesaatenaia

Appendix A

Office of the Attorney General, State of

Alabama, Guidelines for Religious Activities in

IY BETAS GED occesiccccnstellierecetibsithientimitesseescoseses la

Appendix B

Board of Eduwc., Commonwealth of Virgnia,

Guidelines Concerning Religious Activities in

the Public Schools (June 22, 1995)................. seakabanilie 8a

Office of the Attorney General, Commonwealth

of Virginia, Memorandum of Legal Principles

Animating Guidelines (Jan. 9, 1995)........................ 37a

Appendix C

U.S. Dep't of Educ., Religious Expression in

Public Schools (Rev. ed. May 1998).......................... 58a

TABLE OF AUTHORITIES

Page(s)

Supreme Court Cases:

Agostini v. Felton,

EE te a a NE 22

Board of Education of Westside Community

Schools (District 66) v. Mergens, 496 U.S. 226

ITT nbeelincnemntieshalbieaetiadinenaiesmmnaiiaaes 7, 9, 19, 21, 26

City Council of Los Angeles v. Taxpayers for

Vincent, 466 U.S. 789 (1984) ..0000.........ccccecccceeeeeeeeeeeeeees s

Cornelius v. NAACP Legal Defense & Education

PME, GE... SE UB. TED CIGD. onccrcccccccccssccvevceccescceneses 8

Edwards v. Aguillard,

ERE ee Se 21-22

Everson v. Board of Educ. of Ewing,

i stilling 21

Lamb's Chapel v. Center Moriches Union Free

School District, 508 U.S. 384 (1993).................... passim

Lynch v. Donnelly,

I sessed 22

Rosenberger v. Rector & Visitors of the University

of Virginia, 515 U.S. 819 (1995)..........0.......0000000 passim

Santa Fe Independent School District v. Doe,

I 2,6

School Dist. of Grand Rapids v. Ball,

473 U.S. 373 (1985), overruled,

Agostini v. Felton, 521 U.S. 203 (1997).................0.... 22

Whitney v. California,

a LT EE te ae TN 21

TABLE OF AUTHORITIES — Continued

Page(s)

Widmar v. Vincent.

A Ea EN RR passim

Court of Appeals Cases:

Bronx Household of Faith v. Community Sch. Dist.

No. 10, 127 F.3d 207 (2d Cir. 1997), cert.

denied, 523 U.S. 1074 (1998)......0...0..... EER 12, 16

Good News Club v. Milford Central School,

202 F.3d 502 (2d Cir. 2000),

affg 21 F. Supp. 2d 127 (N.D.N.Y. 1998) ............ passim

Good News/Good Sports Club v. School District of

Ladue, 28 F.3d 1501 (8th Cir. 1994), cert.

denied, 515 U.S. 1173 (1995)...................0..00ceeeeee 20-21

Lamb's Chapel v. Center Moriches Union Free

School District, 959 F.2d 381 (2d Cir. 1992),

I I, ST i iccncccvccccccincocedaceccccnccdcccoccces 6

O'Hair v. Andrus,

ee CIE. Ci, BGI ovvccccccvccccccccccccccccccccsceces. 14

District Court Cases:

Full Gospel Tabernacle vy. Community Sch. Dist.

27, 979 F. Supp. 214 (N.D.N.Y. 1997), aff'd per

curiam, 164 F.3d 829 (2d Cir. 1999). cert.

denied, 527 U.S. 1086 (1999)..................ccccceeeeeeeeeeeeees 13

Herdahi v. Pontotoc County Sch. Dist.,

933 F. Supp. 582 (N.D. Miss. 1996)............................ 20

TABLE OF AUTHORITIES — Continued

Page(s)

Statutes and Rules:

N.Y. Educ. Law § 414

(McKinney 1988 & Supp. 2000)...

Se III I coc ccunaeees cousenenshdanawacekedion piienenl |

Other authorities:

Lawrence Tribe,

American Constitutional Law § 14-6 (1978)........... 14

Board of Educ., Commonwealth of Virginia,

Guidelines Concerning Religious Activities in

the Public Schools (June 22, 1995)................. . 2, 24-25

Office of the Attorney General, State of Alabama,

Guidelines for Religious Activities in Schools

(July 29, 1999) . 2, 23-24

Office of the Attorney General, Commonwealth of

Virginia. Memorandum of Legal Principles

Animating Guidelines (Jan. 9, 1995) ........................... 2

James Madison. Memorial and Remonstrance

Against Religious Assessments (1785)....................... 21

U.S. Dep't of Educ., Religious Expression in Public

Schools (Rev. ed. May 1998) .................0000000000e. 2, 25-26

————_— or

BRIEF FOR THE STATES OF ALABAMA, IOWA,

LOUISIANA, MISSISSIPPI, NEBRASKA, OHIO,

SOUTH CAROLINA, TENNESSEE, TEXAS, UTAH,

AND VIRGINIA, AS AMICI CURIAE, IN SUPPORT

OF PETITIONERS

The States of Alabama, lowa, Louisiana, Mississippi,

Nebraska, Ohio, South Carolina, Tennessee, Texas, Utah,

and Virginia respectfully submit this brief as amici curiae

pursuant to Supreme Court Rule 37.4. The amici States

submit this brief in support of Petitioners The Good News

Club, Andrea Fournier, and Darleen Fournier.

INTEREST OF AMICI CURIAE

The amici States have a_ profound interest in

protecting the free-speech mghts and religious liberties of

their citizens, and in ensuring that their public school

officials have clear and reliable guidance when they face

questions concerning the use of public property by

religious organizations. The decision of the Second

Circuit in this case, Good News Club v. Milford Central

School, 202 F.3d 502 (2d Cir. 2000), affg 21 F. Supp. 2d

127 (N.D.N-Y. 1998), subjects religious speech to

unconstitutional viewpoint-based discrimination § and

muddies the water in an important area of First

Amendment law that this Court has previously made

clear.

State and local school officials in the amici States

have long relied on this Court’s guidance in cases such as

Widmar v. Vincent, 454 U.S. 263 (1981), Lamb's Chapel v.

Center Moriches Union Free School District, 508 U.S. 384

(1993), and Rosenberger v. Rector & Visitors of the

University of Virginia, 515 U.S. 819 (1995), in adopting

neutral policies governing the use of public school

facilities. See, e.g., Office of the Attorney General, State

of Alabama, Guidelines for Religious Activities in Schools

(July 21, 2600) (reproduced in Appendix A);' Board of

Educ., Commonwealth of Virginia, Guidelines Concerning

Religious Activities in the Public Schools (June 22, 1995)

and Office of the Attorney General, Commonwealth of

Virginia, Memorandum of Legal Principles Animating

Guidelines (Jan. 9, 1995) (reproduced in Appendix B); see

also U.S. Dep’t of Educ., Religious Expression in Public

Schools (Rev. ed. May 1998) (reproduced in Appendix C).

In following the course of neutrality, state and local

officials have been assured by this Court’s decisions that

they could safely navigate between the Scylla of violating

the Free Speech Clause and the Charybdis of violating

the Establishment Clause when facing requests for use of

public school facilities by religious clubs and organiza-

tions. The decision below in this case casts doubt on the

Court's interpretation of neutrality, however.

This doubt leaves public officials in the amici States in

the unenviable position of attempting to discern whether

the previously certain course set by the principle of

neutrality remains good law in all cases, or if it must be

modified. This uncertainty leaves public officials open to

lawsuits no matter what they decide when a religious club

or organization requests to use school facilities. Finally,

this case is of particular importance because Good News

Clubs operate in all of the amici States. The amici States

thus have an abiding interest in the resolution of this

case.

' The Attorney General of Alabama issued updated guidelines

after the Court's decision in Santa Fe Independent School District v.

Doe, 120 S. Ct. 2266 (2000).

3 °

SUMMARY OF ARGUMENT

At the heart of this case lies the neutrality

commanded of the States by the Free Speech and Religion

Clauses of the First Amendment. It is axiomatic that a

State may not discriminate against speech based upon the

viewpoint it espouses — even in a limited public forum.

Over the past two decades, the Court has repeatedly held

that this rule of neutrality applies with equal force to

religious speakers, and the Establishment Clause does

not justify governmental discrimination against them.

Respondent in this case permits non-school-sponsored

clubs such as the Boy Scouts, Girl Scouts, and 4-H Club to

use its facilities after school hours “to promote the moral

and character development of children.” Brief for

Defendant-Appellee Milford Central School at 9, Good

News Club v. Milford Central Sch., 202 F.3d 502 (2d Cir.

2000) (No. 98-9494). Petitioners, however, view morality

and character development as “senseless without Christ.”

J.A. at P25 (Dep. of Steven Fournier), quoted in 202 F.3d

at 509. Thus, the Good News Club and its speakers

attempt to “promote the moral and character development

of children” through Bible lessons, songs, prayer, and

proselytizing.

Respondent refused to allow the Good News Club to

use its facilities precisely because of the Club’s religious

views on morality and character development and the

Club's views on the best means of promoting those civic

virtues. This would appear to be a classic form of

viewpoint discrimination, but the Court of Appeals ruled

that the Club’s religious activities — Bible stories, songs,

prayer, etc. — changed the subject of the Petitioners’

speech from “morality and character development” to

“religious instruction” or “worship.” This Court has at

least twice rejected such a distinction between “religious”

speech and speech “about” religion.

A rule such as that adopted by the Court of Appeals is

unworkable. In an age of religious pluralism, it could well

prove impossible to determine what words or acts might

constitute worship in a given religious tradition. The very

attempt to decide that question, moreover, would

unconstitutionally entangle the State with religion.

Censorship was not necessary to obey’ the

Establishment Clause in this case. Petitioners’ meetings

were held after school, were not sponsored by the school,

and were open to any child as part of a program in which

many clubs met on school property. Given these facts,

there was little potential that members of the community

would perceive an endorsement of religion by Respondent.

If Respondent remained concerned about the possibility of

any confusion, it could have explained its neutrality to the

school’s parents and required the continued use of

parental permission slips. If Milford was concerned about

children being confused about the school’s neutrality, it

could take that as an opportunity for a first civics lesson,

explaining its position in age-appropriate terms. Even

young children understand the neutral role of umpires

and referees in sports and playground games, and

Respondent could have described its role in similar terms.

The solution to Respondent’s concern about = an

appearance of endorsement in this case was “more

speech” with reasonable, viewpoint-neutral measures —

not censorship.

Finally, public officials need clear guidance and

workable rules to uphold the principle of governmental

neutrality toward religion. Officials in the State and

Federal governments have been attempting to provide

clear, concise guidelines to assist public school officials in

discharging their constitutional duties. A key part of this

guidance has been the explaining the fundamental

principle of governmental neutrality toward religion.

Neutrality is a principle that governmental officials can

understand and apply. It is a principle governmental

lawyers can explain.

A rule such as that adopted by the Court of Appeals

frustrates efforts to underscore the importance of

neutrality, sowing unnecessary confusion by requiring

government to treat religious organizations less favorably

than others. The decision of the Court of Appeals

represents a substantial and troubling departure from the

principle of governmental neutrality embodied in this

Court’s precedents concerning the rights of religious

speakers in limited public fora created by public schools

and universities. As such, the decision of the Court of

Appeals must be reversed.

ARGUMENT

I. THE DECISION OF THE SECOND CIRCUIT

CONFLICTS WITH THIS COURT'S PRECEDENT

AND SANCTIONS GOVERNMENTAL SUPPRES-

SION OF SPEECH FROM A RELIGIOUS VIEW-

POINT.

This case is strikingly similar to Lamb's Chapel v.

Center Moriches Union Free School District, 508 U.S.

384 (1993). Both cases involve the same state statute,

N.Y. Educ. Law § 414 (McKinney 1988 & Supp. 2000).

The school board policy creating the limited public forum

in this case bears a remarkable resemblance to the policy

at issue in Lamb’s Chapel. Compare 508 U.S. at 387

(describing Center Moriches policy) with Pet. App. D1—D3

(Milford policy).2 . Without even mentioning Lamb’s

Chapel, however, the panel majority of the Court of

Appeals held that Respondent’s exclusion of the Good

News Club from Milford’s limited public forum for non-

school-sponsored, after-school clubs was a_ permissible

form of content discrimination, rather than unconstitu-

tional viewpoint discrimination. See 202 F.3d at 509-11.

One judge dissented, observing that he could not “square

the majority analysis in this case with Lamb's Chapel.”

Id. at 513 (Jacobs, J., dissenting).

With its ruling, the Second Circuit — speaking

through the author of the decision reversed in Lamb's

Chapel — attempted to revive reasoning rejected by this

Court in that case and in Widmar and Rosenberger. In so

doing, “(t]he neutrality commanded of the State by the

separate Clauses of the First Amendment was compro-

mised ....” Rosenberger, 515 U.S. at 845.

A. This Court Has Consistently Required View-

point Neutrality Toward Religious Speakers

in Limited Public Fora Created by Public

Schools and Universities.

In Widmar v. Vincent, this Court addressed the use of

public university facilities by student religious organiza-

°The parties agreed and the courts below held that Respondent

had created a limited public forum through its community use policy.

202 F.3d at 509; 21 F. Supp. 2d at 153. This Court's decision last term

in Santa Fe Independent School District v. Doe is thus inapposite here

because the Court held that no public forum had been created in that

case. 1208S. Ct. at 2275 & nn.12-13.

3See 202 F.3d at 504 (showing Judge Miner as author of opinion);

Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 959 F.2d 381,

383 (2d Cir. 1992) (same), rev'd, 508 U.S. 384 (1993).

tions. In Widmar, a State university refused to allow a

religious student organization to use university facilities

for “religious worship and discussion” even though the

facilities were otherwise open to all registered student

organizations. 454 U.S. at 269. The Court held that

“religious worship and discussion” in a limited public

forum “are forms of speech and association protected by

the First Amendment,” thus rejecting the dissent’s

suggestion “that ‘religious worship’ is not speech

generally protected by the ‘free speech’ guarantee of the_

First Amendment and the ‘equal protection’ guarantee of

the Fourteenth Amendment.” /d. at 269 & n.6 (discussing

id. at 283-86 (White, J., dissenting)). —

Accordingly, the university's exclusion of private

religious speech from its limited public forum could be

justified only if it was “necessary to serve a compelling

state interest and .. . narrowly drawn to achieve that

end.” /d. at 270. The university argued that allowing

religious organizations to use its facilities would violate

the Establishment Clause. Jd. at 270-71. The Court

rejected that argument, however, holding that an “equal

access” policy does not violate the Establishment Clause.

Id. at 271-75; see also Board of Educ. of Westside

Community Schs. (Dist. 66) v. Mergens, 496 U.S. 226, 235

(1990) (Widmar “held that an ‘equal access’ policy would

not violate the Establishment Clause”).

In Lamb's Chapel v. Center Moriches Union Free

School District, the Court held that a school district

engaged in unconstitutional viewpoint discrimination

against a local church that had applied to show a film

series on school property after hours. 508 U.S. at 390-97.

The school district allowed community groups to use its

facilities for “social, civic, or recreational uses.” Jd. at

387. It forbade, however, use of school facilities “ ‘by any

group for religious purposes.’” /d. (quoting policy). When

a local church applied to use school property to show a

film series addressing family, child-rearing, and cultural

issues from a Christian perspective, the school district

refused. Jd. at 387-89.

The Court held that the exhibition of the religious film

series in Lamb's Chapel “was denied solely because the

series dealt with the subject from a religious standpoint.”

Id. at 394. The Court held that “denial on that basis was

plainly invalid under our holding in Cornelius |v. NAACP

Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 806

(1985)] ....” 508 U.S. at 394. The Court reiterated that

“‘the First Amendment forbids the government to

regulate speech in ways that favor some viewpoints or

ideas at the expense of others.’” Jd. (quoting City Council

of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804

(1984)). The Court thus held “that discriminating against

religious speech was discriminating on the’ basis of

viewpoint.” Rosenberger, 515 U.S. at 832 (discussing

Lamb's Chapel). Relying on Widmar, the Court in Lamb's

Chapel also dismissed the school board’s argument that

permitting its property to be used for the film series

would violate the Establishment Clause. 508 U.S. at 394—

95.

In Rosenberger v. Rectors & Visitors of the University

of Virginia, the Court again held that a public university

could not discriminate against a_ religious organization

based upon the views it wished to express in a limited

public forum created by the university. The “forum” in

Rosenberger was a student activities fund that paid the

printing costs of “‘student news, information, opinion,

entertainment, or academic communications media

groups. ” Jd. at 824 (quoting fund’s Guidelines). The

university refused, however, to pay the printing costs of a

student publication called “Wide Awake: A Christian

Perspective at the University of Virginia.” Jd. at 826-27.

The university denied the request because it considered

Wide Awake a “religious activity,” id. at 827, which was

excluded by the fund’s Guidelines, id. at 825.

The Court concluded that the university's denial of

third-party payments to the Christian publication was

“based upon viewpoint discrimination not unlike the

discrimination the school district relied upon in Lamb's

Chapel and that we found invalid.” /d. at 832. The Court

noted that “the University does not exclude religion as a

subject matter but selects for disfavored treatment those

student journalistic efforts with religious editorial

viewpoints.” Jd. at 831. The Court rejected the assertion

that the university's discrimination was not viewpoint-

based simply because it attempted to exclude all religious

views. Id. at 831-32.

Finally, the Court rejected the assertion that the

Establishment Clause required the university to exclude

the Christian publication from its forum. J/d. at 837-45.

The Court noted that “[a] central lesson of our decisions is

that a significant factor in upholding governmental

programs in the face of Establishment Clause attack is

their neutrality toward religion,” id. at 839, and held that

the university's student activities fund was in fact

“neutral toward religion,” id. at 840. The Court

emphasized that “[mjore than once have we rejected the

position that the Establishment Clause even justifies,

much less requires, a refusal to extend free speech rights

to religious speakers who participate in broad-reaching

government programs neutral in design.” /d. at 839

(citing Lamb's Chapel, 508 U.S. at 393-94; Mergens, 496

U.S. at 248,252; Widmar, 454 U.S. at 274-75).

B. The Decision of the Court of Appeals

Conflicts with Widmar, Lamb’s Chapel, and

Rosenberger and Censors Religious Speech.

The decision of the Second Circuit in this case conflicts

with Widmar, Lamb's Chapel, and Rosenberger. It

authorizes governmental officials to censor private speech

to filter out views that are “too” religious. In the name of

prohibiting “religious instruction” and “worship,” the

Court of Appeals empowered governmental officials to

root out those views that do not “meet some baseline

standard of secular orthodoxy.” Rosenberger, 515 U.S. at

844.

Much like the Center Moriches policy in Lamb's

Chapel, Respondent's policy allows district residents to

use school facilities after hours for

holding social, civic and recreational meetings and

entertainment events and other uses pertaining to

the welfare of the community, provided that such

uses shall be nonexclusive and shall be open to the

general public.

Pet. App. at D1 (Milford “Community Use of School

Facilities” Policy 4 3).4

* The Center Moriches policy in Lamb's Chapel similarly

permitted district residents to use school facilities after hours for

social, civic, or recreational uses (Rule 10) and use by political

organizations if secured in compliance with §414 (Rule 8).

Rule 7, however, consistent with the judicial interpretation of

state law, provides that “|t}he school premises shall not be

used by any group for religious purposes.”

Lamb's Chapel, 508 U.S. at 387 (citing and quoting Pet. App. at 57a).

Milford admits that it allows the Boy Scouts, Girl

Scouts, and 4-H Club to use school property “to promote

the moral and character development of children.” Brief

for Defendant-Appellee Milford Central School at 9, Good

News Club v. Milford Central Sch., 202 F.3d 502 (2d Cir.

2000) (No. 98-9494). Respondent’s admission on this

point is certainly correct — as far as it goes. The 4-H

Club states that one of the goals of its programs is

“addressing youth and societal issues.” Lodging at AA5.

The 4-H Club's purpose “is to enable youth to develop

knowledge, skills, abilities, attitudes, and behaviors to be

competent, caring adults.” Id.

Respondent fails, however, to acknowledge adequately

the religious aspects of the clubs it allows to use its

facilities. For example, part of the Girl Scouts’ promise is

“Itlo serve God.” Lodging at Z2. At the Boy Scouts

meetings, each member similarly pledges “[t}o do my duty

_to God.” Lodging at Y9 (emphasis added). The Boy Scout

Law states: “A Scout is reverent toward God. He is

faithful in his religious duties. He respects the beliefs of

others.” Id. The Boy Scouts “endeavor[] to develop

American citizens who . .. have personal values based on

religious concepts ....” Id. at Y7 (emphasis added). The

Cub Scouts (a part of Boy Scouts) state that one of their

purposes is to “[i]nfluence a boy’s character development

and spiritual growth.” Id. at Y3 (emphasis added).

Petitioners have asserted that “because we are

teaching morals from a Christian perspective, we would

present that perspective, which is that these morals or

these values are senseless without Christ....” J.A. at

P25 (Dep. of Steven Fournier). Thus, the Good News

Club encourages the “moral and character development of

children” through Bible lessons, games, songs, prayer,

and proselytizing. In the opinion of the Court of Appeals,

this avowedly religious perspective distinguished the

Good News Club from the Girl Scouts and Boy Scouts,

although the Scouts also promote religious devotion. The

Court of Appeals thought that the Good News Club's

approach to morality, with its emphasis on Christian

faith and devotion, was simply “too” religious to be

allowed in Milford’s facilities.

Under Lamb's Chapel, the “critical question” in this

case should have been “whether it discriminates on the

basis of viewpoint to permit school property to be used [by

non-school-sponsored student clubs] for the presentation

of all views about [the moral and character development

of children] except those dealing with the subject matter

from a religious standpoint.” 508 U.S. at 393 (modified as

indicated to reflect the facts of this case). Because Milford

was already allowing the Scouts to address these topics

“from a religious standpoint,” however, the question

really should have been whether it discriminates on the

basis of viewpoint to exclude certain groups that address

the subject matter of morality and character development

from a standpoint that is “more” religious than that of

other groups that are allowed to present their religiously-

based views.

Instead of following Lamb's Chapel the Second Circuit

followed its earlier decision in Bronx Household of Faith

v. Community Sch. Dist. No. 10, 127 F.3d 207 (2d Cir.

1997), cert. denied, 523 U.S. 1074 (1998), which stated

that “it ‘is not difficult for school authorities to make’ the

distinction between the discussion of secular subjects

from a religious viewpoint and the discussion of religious

material through religious instruction and prayer.” 202

F.3d at 510 (quoting Bronx Household, 127 F.3d at 215).

The Court of Appeals concluded that the Good News

Club’s activities were “something other than simply

teaching moral values,” that they did “not involve merely

a religious perspective on the secular subject of morality,”

and that the Club went “far beyond merely stating its

viewpoint.” Jd. at 510. According to the Court of Appeals,

the Club’s activities were not materially different from

“religious worship.” Jd. (quoting Full Gospel Tabernacle

v. Community Sch. Dist. 27, 979 F. Supp. 214, 217

(N.D.N.Y. 1997), affd per curiam, 164 F.3d 829 (2d Cir.

1999), cert. denied, 527 U.S. 1036 (1999)). The Court of

Appeals thus held “that the Club’s activities fall outside

the bounds of pure ‘moral and character development.’ ”

Id. at 511.

This classification of the Good News Club's activities

as unprotected “religious instruction” or “worship” was

precisely the approach rejected by this Court in Widmar,

454 U.S. at 269-70 n.6, 272 n.11, and Rosenberger, 515

U.S. at 844-45. In Widmar, the dissent “argue[d] that

‘religious worship’ is not speech generally protected by the

‘free speech’ guarantee of the First Amendment and the

‘equal protection’ guarantee of the Fourteenth

Amendment.” /d. at 269 n.6 (citing id. at 284 (White, J.,

dissenting)). The Court rejected this attempt to

“distinguish between the kinds of religious speech

explicitly protected by our cases and a new class of

religious ‘speech act|s]’ constituting ‘worship.’” Jd. at 269

n.6 (quoting id. at 285 (White, J., dissenting).

The Court cited “at least three difficulties” with

attempting to distinguish between religious “speech” and

religious “worship” for purposes of First Amendment

protection:

First, the dissent fails to establish that the

distinction has intelligible content. There is no

indication when “singing hymns, reading scripture,

and teaching biblical principles,” cease to be

“singing, teaching, and reading” — all apparently

forms of “speech,” despite their religious subject

matter — and become unprotected “worship.”

Second, even if the distinction drew an

arguably principled line, it is highly doubtful that

it would lie within the judicial competence to

administer. Merely to draw the distinction would

require the university — and ultimately the courts

— to inquire into the significance of words and

' practices to different religious faiths, and in

varying circumstances by the same faith. Such

inquiries would tend inevitably to entangle the

State with religion in a manner forbidden by our

cases.

Finally, the dissent fails to establish the

relevance of the distinction on which it seeks to

rely. ... {I]t gives no reason why the

Establishment Clause, or any other provision of

the Coristitution, would require’ different

treatment for religious speech designed to win

religious converts than for religious worship by

persons already converted. .. .

Id. at 269-70 n.6 (citations omitted) (quoting id. at 283

(White, J., dissenting)). In underscoring the risk of

excessive entanglement of government with religion, the

Court went on to observe that just “to determine which

words and activities fall within ‘religious worship and

religious teaching’ ... could prove ‘an impossible task in

an age where many and various beliefs meet the

constitutional definition of religion.” Jd. at 272 n.11

(quoting O’Hair v. Andrus, 613 F.2d 931, 936 (D.C. Cir.

1979) (footnote omitted), and citing Lawrence Tribe,

American Constitutional Law § 14—6 (1978)).

The Court reiterated these concerns in Rosenberger,

quoting from Widmar at length. 515 U.S. at 845 (quoting

454 U.S. at 269-70 n.6). There, however, the argument

was slightly different from that made by the dissent in

Widmar. The dissent in Widmar argued that: “religious

worship” was not generally protected by the Free Speech

Clause. 454 U.S. at 269 n.6. In Rosenberger, however,

the university argued that the exclusion of the student

publication due to its religious nature was legitimately

based on the paper's content, not its viewpoint. 515 U.S.

at 830. The Court rejected this argument. /d. at 831-32.

The Court later discussed the perils inherent in

requiring government to discriminate between “religious”

speech and speech “about” religion:

Were the dissent’s view to become law, it would

require the University, in order to avoid a

constitutional violation, to scrutinize the content of

student speech, lest the expression in question —

speech otherwise protected by the Constitution —

contain too great a religious content. The dissent,

in fact, anticipates such censorship as “crucial” in

distinguishing between “works characterized by

the evangelism of Wide Awake and writing that

merely happens to express views that a given

religion might approve.” That eventuality raises

the specter of governmental censorship, to ensure

that all student writings and publications meet

some baseline standard of secular orthodoxy. To

impose that standard on student speech at a

university is to imperil the very sources of free

speech and expression. As we recognized in

Widmar, official censorship would be far more

inconsistent with the Establishment Clause’s

dictates than would governmental provision of

secular printing services on a religion-blind basis.

Id. at 844-45 (quoting id. at 896-97 (Souter, J.,

dissenting)). The Court held that such censorship of

student speech and thought “was a denial of the right of

free speech and would risk fostering a pervasive bias or

hostility to religion, which could undermine the very

neutrality the Establishment Clause requires.” /d. at

845-46.

The Second Circuit essentially followed the dissents in

Widmar and Rosenberger, not the opinions of the Court,

cf. Widmar, 454 U.S. at 283-86 (White, J., dissenting);

Rosenberger, 515 U.S. at 896—99 (Souter, J., dissenting).

The result was precisely the “specter” the Court feared in

Rosenberger: Governmental officials scanned the Good

News Club's materials, found that they did not meet the

government's “baseline standard of secular orthodoxy,”

515 U.S. at 844, and censored the Club’s views on

morality and character development.

Il. REQUIRING PUBLIC OFFICIALS TO DISCRIM-

INATE BETWEEN PROTECTED RELIGIOUS

“SPEECH” AND ALLEGEDLY UNPROTECTED

“WORSHIP” OR “RELIGIOUS INSTRUCTION”

IS UNWORKABLE AND UNCONSTITUTIONAL.

The Court of Appeals based its decision in this case on

the premise that “it ‘is not difficult for school authorities

to make’ the distinction between the discussion of secular

subjects from a religious viewpoint and the discussion of

religious material through religious instruction and

prayer.” 202 F.3d at 510 (quoting Bronx Household, 127

F.3d at 215). This conclusion, too, is inconsistent with the

decisions in both Widmar and Rosenberger.

As the Court indicated in Widmar and Rosenberger,

the distinction between “religious” speech and speech

“about” religion lacks “intelligible content.” See

Rosenberger, 515 U.S. at 845 (quoting Widmar, 454 US.

at 269 n.6). “There is no indication when ‘singing hymns,

reading scripture, and teaching biblical principles’ cease

to be ‘singing, teaching, and reading’ ... and become

unprotected ‘worship.’” Widmar, 454 U.S. at 269 n.6

(citation omitted), quoted in Rosenberger, 515 U.S. at 845.

Because there is no principled basis for determining

when “singing, teaching, and reading” become allegedly

unprotected “worship” rather than protected “speech,” the

task of public officials across the Nation in implementing

a rule such as that adopted by the Second Circuit would

be exceedingly subjective and arbitrary. Rather than

simply determining whether a religious organization's

request to use public facilities was consistent with the

purposes for which those facilities could be used, public

officials would have to determine if the _ religious

organization’s activities would be “too” religious. One can

imagine the kinds of questions public officials would find

themselves asking: Will the members of this group sing

religious songs? Will they pray? Will they read the Bible,

Qur'an, Book of Mormon, or other scripture? Will they

proselytize? If they sing and pray, but do not read

scripture or proselytize, must they be excluded? What if

they only sing? What if they only pray? Does the answer

change based on the significance of each activity in the

group’s religious traditions? Finally, if public officials got

the answer “wrong,” they would be subject to suit and a

court would then have to ask the same questions.

This Court acknowledged in Widmar that it could

prove “impossible” “to determine which words and

activities fall within ‘religious worship and religious

teaching, ~ in an age of religious pluralism. 454 U.S. at

272 n.11. More importantly, the Court held that “[s]uch

inquiries would tend inevitably to entangle the State with

religion in a manner forbidden by our cases.” /d. at 270

n.6, quoted in Rosenberger, 515 U.S. at 845.

The amici States submit that, as this Court stated in

Widmar, the kinds of inquiry necessitated by the decision

of the Second Circuit will impermissibly entangle the

State with religion. These inquiries would further lead to

official hostility toward private religious expression. This

hostility is inconsistent with the First Amendment.

IIl.CENSORSHIP OF PETITIONERS’ RELIGIOUS

VIEWS WAS NOT NECESSARY TO OBEY THE

ESTABLISHMENT CLAUSE AND DISPLAYED

GOVERNMENTAL HOSTILITY TOWARD RE-

LIGION.

Respondent has maintained throughout this case that

its discriminatory treatment of the Good News Club was

necessary to obey the Establishment Clause. See Brief for

Defendant-Appellee Milford Central School at 23-25,

Good News Club v. Milford Central Sch., 202 F.3d 502 (2d

Cir. 2000) (No. 98-9494). This position fails to distinguish

adequately between government speech and private

speech about religion. Respondent's concerns about an

appearance of governmental endorsement of the Good

News Club’s views could have been addressed through

reasonable, viewpoint-neutral means that would not

require censorship. By censoring Petitioners’ views in a

forum open to more secular clubs addressing the same

subject matter, Respondent communicated governmental

hostility, rather than neutrality toward religion. Such a

message of hostility toward religion violates the First

Amendment.

A. Censorship of Petitioners’ Viewpoint Was

Not Necessary to Obey the Establishment

Clause.

In Rosenberger, the Court noted that “[mJore than

once have we rejected the position that the Establishment

Clause even justifies, much less requires, a refusal to

extend free speech rights to religious speakers who

participate in broad-reaching government programs

neutral in design.” 515 U.S. at 839 (citing Lamb's Chapel,

508 U.S. at 393-94; Mergens, 496 U.S. at 248, 252;

Widmar, 454 U.S. at 274-75). As in Rosenberger,

Respondent and the courts below failed adequately to

distinguish “‘between government speech endorsing

religion, which the Establishment Clause forbids, and

private speech endorsing religion, which the Free Speech

and Free Exercise Clauses protect.” 515 U.S. at 841

(quoting Mergens, 496 U.S. at 250 (plurality opinion)

(emphasis in Mergens)). By refusing to allow the Good

News Club .o address the “moral and _ character

development of children” from its admittedly religious

perspective, school officials censored the Club’s private

speech and silenced its viewpoint on moral development.

Such censorship was not necessary to obey the

Establishment Clause.

Respondent's concerns about an appearance of

governmental endorsement of _ religion, while an

important consideration, are overstated. As in Lamb's

Chapel, the Good News Club’s meetings “would not have

been during school hours, would not have been sponsored

by the school, and would have been open to” any child, not

just Christian children or Club members. 505 U.S. at

395. As in Lamb’s Chapel, Milford’s “property had

repeatedly been used by a wide variety of private

organizations.” Jd. Given these facts, “there would have

been no realistic danger that the community would think

that the district was endorsing religion or any particular

creed, and any benefit to religion or to the church would

have been no more than incidental.” /d.

Any concern that children might misunderstand

Milford’s neutrality could be addressed using reasonable,

viewpoint-neutral means. For example, Milford already

required students to have parental permission to attend

the Good News Club’s meetings. See Lodging at X2. Such

parental consent places “elementary children ... on an

equal footing with secondary school students” by

incorporating parental maturity and decision-making in

the process and by creating an opt-in program that

reduces any appearance of endorsement to

nonparticipants. Herdahl v. Pontotoc County Sch. Dist.,

933 F. Supp. 582, 590 (N.D. Miss. 1996); see also Good

News/Sports Club v. School Dist. of City of Ladue, 28

F.3d 1501, 1509 n.17 (8th Cir. 1994) (noting use of

parental permission slips), cert. denied, 515 U.S. 1173

(1995). In addition, Milford could have prohibited

teachers attending Club meetings, so that there would be

no association between the Club and authority figures

employed by the school.

If Respondent was worried that parents or other

adults might misunderstand the school’s constitutionally

mandated neutrality toward religion, it could explain its

position to them. If the school were concerned that

younger children still might be confused, it could use the

opportunity as a first civics lesson and explain to them, in

age-appropriate terms, its neutral position. Even young

children understand the concept of neutrality from the

role of referees and umpires in sports and playground

games, and Respondent could describe its role in similar

terms. See also Good News/ Sports Club, 28 F.3d at 1509

(distinction between public speech and private speech

“not a difficult concept”). In short, the constitutionally

preferred remedy in this situation is “more speech”® with

reasonable, viewpoint-neutral measures — _ not

censorship.

B. Censoring Petitioners’ Religious Viewpoint

Suggests Governmental Hostility Toward

Religion.

In Mergens, a plurality of the Court observed that “if a

State refused to let religious groups use facilities open to

others, then it would demonstrate not neutrality but

hostility toward religion.” 496 U.S. at 248.6 Respondent's

discrimination against the Good News Club presents just

such a situation and communicates the same message —

hostility toward religion. Even school-aged children

cannot be expected to ignore this hostility and

discrimination.

Indeed, the message of hostility toward religion is all

the more troubling due to the age of the children involved.

This Court has cited the impressionability of young

children as supporting the need to safeguard against the

appearance of governmental sponsorship of religious

activity. See, e.g., Edwards v. Aguillard, 482 U.S. 578,

5Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J.,

concurring).

‘Cf. James Madison, Memorial and Remonstrance Against

Religious Assessments 4 4 (1785) (“the Bill violates equality by

subjecting some to peculiar burdens”), reprinted in Everson v. Board of

Educ. of Ewing, 330 U.S. 1, 66 (1947) (appendix to dissent of Rutledge,

J.); id. 4 9 (“It degrades from the equal rank of Citizens all those whose

opinions in Religion do not bend to those of the Legislative authority.”),

reprinted in Everson, 330 U.S. at 69 (appendix to dissent of Rutledge,

J.).

584 (1987); School Dist. of Grand Rapids v. Ball, 473 U.S.

373, 385 (1985), overruled, Agostini v. Felton, 521 U.S.

203, 236 (1997). When the government's message is one

of hostility toward religion, however, impressionable

children are equally harmed.

The Constitution “forbids hostility toward any”

religion. Lynch v. Donnelly, 465 U.S. 668, 673 (1984). By

excluding the Good News Club from facilities available to

the Boy Scouts, Girl Scouts, and 4-H Club, Milford

demonstrated unconstitutional hostility toward religion.

A message of _ hostility toward religion harms

impressionable young children who may be led to believe

that their government does not like religion or that their

government thinks religion is bad for them. Such a

message can be avoided through a policy of neutrality and

even-handed treatment.

IV. PUBLIC OFFICIALS NEED CLEAR GUIDANCE

AND WORKABLE RULES TO UPHOLD

GOVERNMENTAL NEUTRALITY TOWARD

RELIG-ION. )

Public school officials and other governmental officers

who oversee public facilities routinely handle requests

from a_ variety of groups, including _ religious

organizations, to use government facilities. These

officials, most of whom are not lawyers, need clear

channel markers if they are to navigate between the Free

Speech Clause on one hand, and the Establishment

Clause on the other.

In Widmar, Lamb’s Chapel, and Rosenberger, this

Court set out those markers, placing certain inquiries

beyond the authority of governmental officers. In so

doing, the Court clarified (and simplified) the duties of

public officials faced with requests from religious

organizations to use public facilities. These officials were

required to review the purposes for which their facilities

could be used, determine if the religious organization

wished to use the facility for one of those purposes, and

then treat the religious organization just like any other

group. The officials were not given the Sisyphean task of

distinguishing between religious “speech” and religious

“worship.” Widmar, 454 U.S. at 269-70 & n.6, 272 n.11.

They were not to evaluate the organization's materials to

see if they were sufficiently secular. Cf. Rosenberger, 515

U.S. at 845-46. There was to be no endorsement of

religion, but neither was there to be any discrimination

against religion.

Hoping to promote better understanding of this

Court’s Establishment Clause jurisprudence, particularly

in the context of religious activities in public schools,

various organizations and governments have issued

guidelines to assist public officials in understanding their

obligations. For example, beginning in 1997, the Attorney

General of Alabama issued Guidelines for Religious

Activities in Schools to public school officials in Alabama.

Recently revised after the decision in Santa Fe

Independent School District v. Doe, these Guidelines

address, inter alia, the use of public school facilities by

private religious organizations. The Alabama Guidelines

state:

Private citizens and student groups must be

allowed access to school facilities for meetings of a

religious nature, subject to the same limitations

placed on non-religious meetings.

App. A, infra, at 5a (emphasis added). With respect to

private baccalaureate services, the Guidelines similarly

provide:

If a school by policy and practice rents out its

facilities to private groups, it must rent them out

on the same terms and conditions, and on a first-

come first-served basis, to organizers of privately

sponsored religious baccalaureate services.

Id. at 6a (emphasis added). The Alabama Guidelines

stress the requirement of governmental neutrality toward

religion:

Teachers and _ school administrators must

demonstrate and observe neutrality with regard to

private baccalaureate services and school officials

may neither encourage nor discourage student

attendance at such events.

Id. (emphasis added).

The Department of Education of the Commonwealth

of Virginia issued Guidelines Concerning Religious

Activity in the Public Schools in 1995. The Virginia

Guidelines contain advice similar to the Alabama

Guidelines:

60. Once the school district opens its facilities

for use by students or community groups during

non-school hours, the Free Speech clause of the

First Amendment generally requires that the

school district not discriminate based on the point

of view of groups seeking equal access to those

facilities. The denial of access to religious groups

can constitute viewpoint discrimination in

violation of the Free Speech Clause of the First

Amendment.

61.Use of school facilities by religious

community groups after school hours should be

granted on the same basis as other nonreligious

community groups. A group may not be denied use

of meeting space solely because its speech, purpose

or identity is religious.

App. B, infra, at 34a-35a (citations and footnotes

omitted).

The United States Department of Education was

among the first to issue such guidelines, entitled

Religious Expression in Public Schools, and has

distributed them to every public school in the nation.

These federal guidelines contain similar advice regarding

the use of public school facilities after hours by private

religious groups:

If a school generally opens its facilities to private

groups, it must make its facilities available on the

same terms to organizers of privately sponsored

religious baccalaureate services. A school may not

extend preferential treatment to baccalaureate

ceremonies and may in some instances be obliged

to disclaim official endorsement of such ceremo-

nies.

App. C, infra, at 66a. The federal guidelines similarly

underscore the importance of official neutrality in

religious matters:

Official neutrality regarding religious activity:

Teachers and school administrators, when acting

in those capacities, are representatives of the state

and are prohibited by the establishment clause

from soliciting or encouraging religious activity,

and from participating in such activity with

students. Teachers and administrators also are

prohibited from discouraging activity because of its

religious content, and from _ soliciting § or

encouraging antireligious activity.

Id.

These guidelines evidence the substantial efforts

public officials are making to explain and uphold this

Court’s Establishment Clause jurisprudence. In

particular, public officials in State and Federal govern-

ment are attempting to explain and promote govern-

mental neutrality in the context of free speech and

religious activities. Unfortunately, the decision of the

Second Circuit undermines these efforts.

This Court has repeatedly “rejected the position that

the Establishment Clause even justifies, much less

requires, a refusal to extend free speech rights to religious

speakers who participate in broad-reaching government

programs neutral in design.” Rosenberger, 515 U.S. 839

(citing Lamb’s Chapel, 508 U.S. at 393-94; Mergens, 496

U.S. at 248, 252; Widmar, 454 U.S. at 274-75). The Court

has similarly rejected the suggestion that public officials

should exclude religious organizations simply because

their mode of expressing their views and beliefs may take

the form of singing religious songs, prayer, reading

scripture, or proselytization. See Widmar, 454 U.S. at

269-70 n.6; Rosenberger, 515 U.S. at 844-45. A common

theme throughout this line of cases, both in the Court’s

Free Speech Clause analysis and in its Establishment

Clause analysis, has been governmental neutrality —

neutrality toward varying viewpoints and neutrality

toward varying religions and religious traditions.

Neutrality is a concept governmental officials can

understand. It is a concept governmental lawyers can

explain. Of course, that is not to say that applying the

principle of neutrality is always easy given the

innumerable factual situations governmental officials face

every day. The appropriate course of governmental action

is not always obvious, but a clear rule of neutrality goes a

long way toward pointing public officials in the right

direction. In this case, the amici States urge the Court

once again to underscore the principle of governmental

neutrality that lies at the heart of its decisions in

Widmar, Lamb’s Chapel, and Rosenberger.

CONCLUSION

The judgment of the United States Court of Appeals

for the Second Circuit should be reversed.

Respectfully submitted,

BILL PRYOR

Attorney General of Alabama

MARGARET L. FLEMING

JOHN J. PARK, JR.

CHARLES B. CAMPBELL*

Assistant Attorneys General

Counsel of Record *

OFFICE OF THE ATTORNEY GENERAL

STATE OF ALABAMA

11 South Union Street

Montgomery, Alabama 36130-0152

(334) 242-7300

(Additional Counsel listed

on Inside Front Cover)

eee ee

APPENDIX A

[Seal]

State of Alabama

OFFICE OF THE ATTORNEY GENERAL

Bill Pryor Alabama State House

Attorney General 11 South Union Street

Montgomery, Alabama 36130

(334) 242-7300

WWW.AGO.STATE.AL.US

July 21, 2000

MEMORANDUM

TO: All City and County Superintendents of

Education

FROM: | Bill Pryor, Attorney General

Michael R. White, General Counsel, State

Department of Education

RE: Updated Guidelines for Religious Activities in

Schools

A joint memorandum to all superintendents regarding

permissible religious activities in public school settings

was sent to you on December 8, 1997. On April 13, 1998,

you received Guidelines for Graduation Exercises and

Baccalaureate Services. On July 29, 1999, after the

decision by the United States Court of Appeals in

Chandler v. James, we wrote a joint memorandum to

update the Guidelines based upon the decisions of the

United States Supreme Court and the Eleventh Circuit

Court of Appeals. We now write again to update the

Guidelines based upon the Supreme Court’s recent

decision in the case of Santa Fe Independent School

District v. Doe.

In Santa Fe Independent School District v. Doe, the

Supreme Court ruled that a Texas school district could

not organize a student election to select a student to give

an invocation before high school football games. Our

Guidelines already indicated that “[o]rganization or

direction of a prayer by a school official would not be

appropriate,” so this new decision has not required a

change to the Guidelines. We have merely added

statements to explain that the _ prohibition § on

“organization or direction of a prayer” means school

officials should not hold a student election for the purpose

of selecting a student to give a prayer at school-sponsored

sporting events. We advise that this same rule should

apply to school-sponsored activities generally, including

commencement/graduation exercises. This does not,

however, prohibit regularly scheduled student speakers,

such as a valedictorian or class president, from praying,

reading scripture, or making religious comments in the

course of their speeches. As the Eleventh Circuit Court of

Appeals held in Chandler v. James, such “genuinely

student-initiated religious speech” is protected by the

First Amendment.

As you may remember from our July 29, 1999,

Memorandum, the Permanent Injunction issued by Judge

DeMent against the DeKalb County school system in the

Chandler v. James case was vacated and remanded by the

Eleventh Circuit Court of Appeals. The Court found that

“genuinely student-initiated religious speech” may not be

suppressed nor restrictions applied “on the time, place,

and manner of that speech which exceed those placed on

students’ secular speech.” The Supreme Court has

vacated that decision and ordered the Eleventh Circuit to

reconsider the case in the light of its new decision in the

Santa Fe case. We believe the Eleventh Circuit’s decision

is consistent with the outcome in Santa Fe, and that the

Court’s opinion will not be significantly modified. In any

event, we will inform you as soon as the Eleventh Circuit

rules.

As before, we believe these Guidelines should enable

you to ensure that students can fully exercise their First

Amendment rights in an environment that does not

conflict with the Establishment Clause.

GUIDELINES FOR RELIGIOUS

ACTIVITIES IN SCHOOLS

Introduction

The following guidelines are issued to provide

assistance to public school administrators and teachers.

These guidelines are based on the rules reiterated by the

Eleventh Circuit Court of Appeals in Chandler v. James

and in opinions of the United States Supreme Court.

These guidelines are intended to be instructive and not

all-inclusive.

Permissible Activities in General

e Students may voluntarily engage in individual or

group prayer during non-instructional time or at

school-sponsored events. This includes individual or

group prayer before or after athletic events. School

officials (e.g. coaches) should neither encourage nor

discourage individual or group prayer. Organization

or direction of a prayer by a school official would not

be appropriate; this also means that school officials

should not hold a student election for the purpose of

choosing a student to give a prayer at a_ school-

sponsored event.

e Students may voluntarily engage in_ religious

discussions during non-instructional time or at school-

sponsored events. Students may speak to and attempt

to persuade their peers about religious topics just as

they do with regard to political or other topics.

e Students may express religious beliefs in reports,

homework, artwork, and other written and oral

assignments, which should be judged by ordinary

academic standards of substance and relevance.

Private citizens (including students) may distribute

religious literature in accordance with all applicable

time, place and manner restrictions applicable to the

distribution of literature that is unrelated to school

curriculum activities.

Students may display religious messages or symbols

on items of clothing (e.g., cross, menorah, Star of

David, etc.) to the extent that they may display

comparable non-religious messages or symbols on

items of clothing. Students also may wear particular

attire (e.g., yarmulkes, head scarves, etc.) during the

school day or at school-sponsored events as part of the

students’ religious practices consistent with board

policies and State law.

Private citizens and student groups must be allowed

access to school facilities for meetings of a religious

nature, subject to the same limitations placed on non-

religious meetings.

Students in_ secondary’ schools may have

announcements of meetings of a religious nature

conveyed in the same manner that announcements

are made for meetings of other non-religious groups

(e.g. public address system, school newspaper, etc.).

Teachers may teach about religion, including the Bible

and other scripture, provided that such teaching

concerns the history of religion, comparative religions,

the Bible (or other scripture) as literature, and/or the

role of religion in the history of the United States. The

use of religious symbols (e.g., cross, menorah, symbols

of Native American religions) is permitted as a

teaching aid or resource provided such symbols are

displayed as an example of the cultural and religious

subject being taught.

A fixture or symbol that is traditionally associated

with a particular religion (e.g., nativity scene,

menorah, etc.) may be included as a “prop” in a school

holiday production to the same degree that non-

religious props are used in school productions,

provided such symbols are displayed as an example of

the cultural and religious heritage of the holiday.

Traditional holiday music may be included in school

productions (e.g., choral events, band activities, etc.)

in keeping with the cultural or religious heritage of

the holiday.

Special Considerations for

Commencement/Graduation

Baccalaureate Services

If a school by policy and practice rents out its facilities

to private groups, it must rent them out on the same

terms and conditions, and on a first-come first-served

basis, to organizers of privately sponsored religious

baccalaureate services.

Teachers and school administrators must demonstrate

and observe neutrality with regard to private

baccalaureate services and school officials may neither

encourage nor discourage student attendance at such

events.

Teachers and school administrators may attend such

functions in their individual capacities.

Baccalaureate services are to be announced or

advertised in the same manner as other non-religious

meetings, such as notices in the school newspaper or

use of the public address system and bulletin boards.

Commencement Exercises

e Student-initiated religious speech is _ permitted;

however, school officials are not to encourage,

organize, or direct such speech. This also means that

school officials should not hold a student election to

choose a student to give a prayer at school-sponsored

commencement exercises.

e Regularly scheduled student speakers (e.g.,

valedictorian, salutatorian, class president) may make

religious comments during their speeches. School

officials are not to encourage or direct such speech.

e Religious persons and/or organizations are entitled to

advertise in school commencement programs/

directories on the same terms as other persons or

community organizations.

The intent of these Guidelines is to outline a course of

study, conduct, and related activities that does not

prescribe directly or indirectly a single religion, belief, or

observance and that is consistent with the prevailing

decisions by the United States Supreme Court and the

Eleventh Circuit Court of Appeals.

Any questions regarding the above Guidelines or conduct

that is not specifically detailed above should be directed

_to the Office of the Attorney General, Bill Pryor, or the

General Counsel for the Department of Education, Mike

White.

APPENDIX B

[Seal]

Board of Education’s Guidelines Concerning

Religious Activity In The Public Schools

WHEREAS, the 1994 General Assembly enacted Va.

Code § 22.1-280.3 requiring the Board of Education, in

consultation with the Office of the Attorney General, to

develop Guidelines on _ constitutional rights and

restrictions relating to religious expression in our public

schools; and

WHEREAS, such Guidelines are not intended to be

regulations displacing local discretion and determination,

but as technical assistance outlining relevant

constitutional and statutory principles for consideration

by local school authority; and

WHEREAS, in accordance with Va. Code § 22.1-280.3,

the Board of Education provided broad-based opportunity

for input from the general public, teachers and local

school boards, before establishing Guidelines.

NOW, THEREFORE, BE IT RESOLVED that the

Board of Education hereby adopts the attached

Guidelines and directs that they be disseminated to the

public schools of this Commonwealth and made available

for public distribution.

Adopted this 22nd day of June, 1995.

s/_»ames P. Jones s/_William C. Bosher, Jr.

James P. Jones William C. Bosher, Jr.

President, Board of Education Superintendent of Public

Instruction

Board of Education’s Guidelines Concerning

Religious Activity In The Public Schools

Introduction

1. These Guidelines are not intended as regulations

or state policies displacing local discretion. These

Guidelines are designed instead as technical assistance

for consideration by local school officials, administrators

and teachers in formulating their local policies and

decisions. They have been adopted following public

hearings throughout the Commonwealth and after

opportunity for comment and input from the general

public, teachers, school administrators and school boards,

parents and students, and interested organizations.

2. These Guidelines do not purport to provide

definitive answers to all of the possible issues and the

varied circumstances as may exist in the public schools.

Indeed, the United States Supreme Court has cautioned

that decisions in this area are particularly fact-sensitive.

In that regard, local school consideration should also take

into account the attached memorandum prepared by the

Office of the Attorney General, dated January 9, 1995.

That memorandum sets forth the conceptual framework

in the law generally applicable and governing in most

situations.

Guidelines

3. One can imagine a number of situations in which

private individuals might engage in religious expression

or practices. They might pray before school, during

school, or during extracurricular activities; they might

wear religious attire or clothing with a religious message.

They might carry the Bible or other sacred texts with

them in school; they might attempt to evangelize or

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proselytize other students. The religious beliefs of some

students may cause their parents to request that they be

excused from holiday celebrations, holiday pageants,

physical education or a curriculum which violate sincerely

held religious convictions.

4. The public schools should troughtfully consider

any religious objection to its practices or policies made by

parents or students. School authorities should determine

whether exemptions or exceptions to their policies and

practices can be provided in the interest of reasonably

accommodating sincerely held religious beliefs.

Curriculum

5. Students should be excused from school to attend

religious services or observe religious holidays.

Manifestly, any requested absence must be in conformity

with local school procedures, including parental or

guardian approval as necessary.

6. The public schools are not required to conform

their curriculum to every religious tenet or objection. On

the other hand, while the curriculum must not be

designed to promote religious belief or non-belief, it need

not be sanitized of all religious references or themes

which may appear in educational materials. While the

precise contours of their rights have not been judicially

defined, parents and students also have constitutional

rights — at least in some circumstances — to exemption

from assignments, materials or programs that

substantially burden their religious tenets. Thus, public

school authorities should thoughtfully consider whether

suitable alternatives are available that would allow

students to opt-out of any program in which participation

would substantially burden their religious tenets. Where

such a burden occurs and public school authorities cannot

lla

show a compelling interest in requiring attendance, the

student must be allowed to opt-out.!

7. As provided by state law, local school boards must

excuse from school attendance “any pupil who, together

with his parents, by reason of bona fide religious training

or belief, is conscientiously opposed to attendance at

school.” Virginia law provides however that “bona fide

religious training or belief does not include essentially

political, sociological or philosophical views or a merely

personal moral code.” See Va. Code § 22.1-257. Also,

Virginia law authorizes home instruction as an

alternative to public schooling under certain conditions.

See Va. Code § 22.1-254.1. When the requirements of

home instruction have been met, instruction of children

! These rights of parents and students are granted in the Free

Exercise and Free Speech Clauses of the First and Fourteenth

Amendments. The Religious Freedom Restoration Act may also

provide similar protection. Opt-out or excusal as an accommodation to

free exercise concerns has been looked upon favorably by the courts.

West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943);

Grove v. Mead Sch. Dist., 753 F.2d 1528, 1533 (9th Cir. 1985) (Despite

finding of a [sic] free exercise burdens inherent in making child read

textbooks which espoused views contrary to her family’s faith, no

constitutional violation as student was excused from reading offensive

book and assigned an alternative book); Smith v. Board of Sch.

Comm'rs, 827 F.2d 684 (11th Cir. 1987) (parents of school children

successfully challenged the mandatory use of textbooks which

contained religiously objectionable references); Mozett v. Hawkins

County Bd. of Educ., 827 F.2d 1058 (6th Cir. 1987) (requiring students

to be simply exposed to objectionable ideas in standard curriculum did

not impose substantial burden on religion without proof that the

student was required to conform or take some action contrary to their

religious belief); Fleischfresser v. Directors of Sch. Dist. 200, 15 F.3d

680 (7th Cir. 1994) (dismissing challenge to supplemental reading

program which contained offensive references to “witches, giants and

sorcerers” and arguably suggested pagan themes).

12a

by their parents in their home is an acceptable form of

education under the policy of the Commonwealth of

Virginia.

8. School personnel, including teachers, shall not lead

their classrooms in devotional exercises whether directly

in class or over a public address system.? A school official

or teacher also shall not ask or designate a student

volunteer to lead the class in a devotional exercise.*

9. Our United States Supreme Court has however

aptly recognized that public education may not be

complete without a study of our religious heritage or an

objective comparison of our religious pluralism. School

Dist. v. Schempp, 374 U.S. 203 (1963). When presented

objectively as part of a secular program of education, the

public schools may offer courses in comparative religion,

study the history of various religions and their

relationship to civilization, as well as the historic and

literary qualities of religious materials. Religious music

may also be included in music classes, religious art may

be included in art and humanities classes, the Bible and

other religious texts may be studied in literature classes,

and literature dealing with religious themes may be used

in language arts development. School and classroom

libraries may also include books with religious themes.*

* School Dist. v. Schempp, 374 U.S. 203 (1963); Engel v. Vitale,

370 U.S. 421 (1962).

5B. vu. Treen, 653 F.2d 897 (5th Cir. 1981), affd, 455 U.S. 913

(1982).

‘ In Roberts v. Madigan, 702 F. Supp. 1505 (D. Colo. 1989), a

federal court, in refusing to remove a Bible from a public school library

stated: “In this age of enlightenment, it is inconceivable that the Bible

should be excluded from a school library. The Bible is regarded by

many to be a major work of literature, history, ethics, theology and

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If the school offers a course specifically studying the Bible

or other religious texts as literature, the course should be

taught like other courses offered at the same grade level.

The material must be balanced and objectively taught

without attempt to indoctrinate religious belief or non-

belief. Teachers of the course should be assigned using

objective standards without any religious test.®

Discussion of religious topics or materials should be

relevant to the curriculum and should not occupy a

disproportionate amount of classwork. Course work

should not include participation in a religious ceremony of

any kind during or outside of class. Schools should also

be mindful of their students’ diversity of religious beliefs.

10. Religious symbols or religious texts, such as the

Ten Commandments, may not be posted in the public

schools when the purpose or primary effect is to advance

religion, but may be posted on a temporary basis as part

of an academic lesson or curriculum. The public schools,

however, may properly teach students important values,

ethics and morality, but not through religious

indoctrination. The Ten Commandments, the Bible, as

well as other religious materials may be studied for bona

fide educational purposes.

philosophy.... To deprive a public school library's collection of the

Bible would, in the language of Justice Robert Jackson, render the

educational process ‘eccentric’ and incomplete.” Jd. at 1513.

5 Crockert v. Sorenson, 568 F. Supp. 1422 (W.D. Va. 1983);

Vaughn v. Reed, 313 F. Supp. 431 (W.D. Va. 1970).

6 Malnak v. Yogi, 592 F.2d 197 (3rd Cir. 1979), finding that

student participation in transcendental meditation (“TM”) exercise

constituted an establishment or religion in violation of the First

Amendment.

l4a

Free Time

11. During most of the school day, the attention of

students is properly directed toward activities forming

part of the school curriculum or co-curriculum. There are,

however, other periods of the school day when students

are generally free to read on their own, or to gather

together and/or talk among themselves about subjects of

their own choosing. While such non-instructional periods

may vary from school to school, they typically include, but

are not necessarily limited to (i) riding to and from the

school on the school bus, (ii) a period each morning

between the time students are permitted on school

grounds and the time they are required to be present in

their seats, (iii) lunch time, (iv) recess in the lower grades,

and (v) in the upper grades, brief periods between classes.

12. During such free time, students should be free to

read religious literature of their own choosing, and to

discuss religious themes with other willing students on

the same basis as they might discuss secular interests

and subjects.

13. Student-initiated and non-disruptive devotional

activities during free time, such as “meet me at the pole”

events prior to school, should be permitted. Teachers and

school officials must not encourage or discourage

participation by students in such events. The public

schools however have the right and responsibility to

protect public property and preserve order and determine

the school facilities and permissible locations authorized

for such activity. Such decisions should be made and

applied evenly without favoring or discriminating against

the activity solely because of its religious nature.

14. Similarly, if a school conducts a study period or

provides other times in which students are allowed to

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read materials other than those prescribed by the school

curriculum, the students must be free to read religious

material, not just secular material.

Student Dress

15. Students will sometimes express their religious

convictions on their clothing or personal effects. For

example, a Christian girl may wear a necklace bearing a

cross, while a Jewish girl may wear a necklace displaying

a Star of David. Students may also wear T-shirts bearing

religious messages.

16. In the absence of disruption to school activities,

obscenity or lewdness, these and other expressions of

belief will generally constitute protected speech. Public

school personnel may not discipline students because they

disagree with the underlying message, but may take

reasonable action needed to promote order and address

any disruptive effects of such student speech. A school

may adopt a content-neutral dress code that uniformly

prohibits certain kinds of clothing altogether; provided, a

dress code does not single out or discriminate against

religious expression. For example, schools may determine

that T-shirts are not appropriate attire and apply the

policy evenhandedly to all such apparel. Schools should

attempt, however, to accommodate student’s religious

attire as well as religiously based modesty concerns (e.g.

in physical education classes).

Student Assignments

17. Student art projects often center around seasonal

themes. Where the season has both secular and religious

connotations, some students may prefer to depict a

secular aspect of the season, while others may prefer to

depict a religious aspect.

16a

18.So long as the expression is germane to the

assignment, teachers should not discriminate against

students who prefer a religious theme or viewpoint over a

secular one (or vice versa). Example: Where different

students depict a manger scene, a menorah and “Frosty

the Snowman,” the teacher may display them all on an

equal basis, or on the basis of their artistic merit, but may

not discriminate in favor or against any of them on the

basis of the religiosity or secularity of their themes.

Students have a right to express their religious values

and viewpoints in their classwork, assignments and work

products to the same degree that students may express

secular viewpoints. A student's grade or evaluation must

never be affected by his or her creed or religious belief or

non-belief.

Distributions of Religious Literature

19.Students should be permitted to distribute

religious material during school on the same or equal

basis as non-religious material. Rivera v. East Otero Sch.

Dist., 721 F. Supp. 1189 (Colo. 1989) (peaceful student

distributions of religious literature at school protected by

the First Amendment). The schools may however

reasonably regulate the time, place and manner of such

distribution. Hedges v. Wauconda Comm. Sch. Dist., 9

F.3d 1295 (7th Cir. 1993). (Merely permitting an eighth

grader to distribute religious literature to peers before

class without disruption did not raise Establishment

Clause concerns).

20. Schools should not grant community groups or

individuals from outside the school special access to the

students during the school day for purposes of

proselytizing or distributing proselytizing literature to

students. See, e.g., Berger v. Rensselaer Cent. Sch. Corp.,

982 F.2d 1160 (7th Cir.), cert. denied, 113 S. Ct. 2344, 124

17a

L. Ed. 2d 254 (1993). A long line of Supreme Court

precedents establish that it is impermissible for school

officials to allow the machinery of the state to be used to

provide an audience for religious exercises or instruction

by outside groups. See Illinois ex rel. McCollum v. Board

of Educ., 333 U.S. 203 (1948); Engel v. Vitale, 370 USS.

421 (1962). In disapproving access to students by

religious organizations, the Court, in McCollum, stated

that:

Here not only are the state’s tax-supported

public school buildings used for the dissemination

of religious doctrines. The State also affords

sectarian groups an invaluable aid in that it helps

to provide pupils for their religious classes through

use of the state’s compulsory public school

machinery.

333 U.S. at 212.

21.Community groups have no right to enter the

school grounds to distribute materials to students during

the school day. Where the school elects to allow such

distribution by some community groups for nonsectarian

purposes, the law is still developing with regard to

affording equal access to community groups to distribute

religious materials in the public schools. Policy in this

area should consider the manner, time and location of the

distribution and whether there is risk that

impressionable children will perceive official school

endorsement of the material.’

7 See Good News/Good Sports Club v. School Dist., 28 F.3d

1501 (8th Cir. 1994), petition for cert. filed, No. 94-1299, 63 USLW

3583 (January 26, 1995) (school district engaged in viewpoint

discrimination by denying access to a religious community group

18a

Holidays

22. Public Schools have traditionally acknowledged a

wide variety of holidays, some with religious origins and

significance. Teachers and students typically prepare

displays, study the origin of holidays and participate in

plays or concerts. Administrators and teachers should

fundamentally be sensitive to “inclusion” not “exclusion”

of students holding diverse religious viewpoints.

23. A public school may recognize holidays also having

religious significance to some (e.g., Christmas and

Easter). While these holidays have religious origins and

retain a religious significance, they have also become part

of our national culture and heritage. The religious

significance should not, however, be promoted or

sponsored. Case law suggesis that context can be

important to assure fair balance and sensitivity to all

students. A musical program consisting solely of religious

music, for example, is more problematic than a program

that combines religious and secular music. See R.J.2J. v.

Shineman, 658 S.W.2d 910, 913 (Mo. Ct. App. 1983)

(winter holiday concert constitutional where seasonal

numbers such as “Jingle Bells” performed along with

Christmas carols). See also County of Allegheny v. ACLU,

meeting with students after school, while permitting an allegedly

nonreligious community group to meet with students on the same

topics); Sherman v. Community Consol. Sch. Dist. 21, 8 F.3d 1160 (7th

Cir. 1993) (no establishment clause violation when school division

allowed the Boy Scouts, which requires all members to affirm belief in

God, to use elementary school facilities for meetings and to distribute

flyers and posters through the school); Schanou v. Lancaster County

Sch. Dist., 863 F. Supp. 1048 (D. Neb. 1994) (Gideons permitted to

distribute Bibles after school to students on sidewalks on school

property where other groups also allowed to distribute their

literature).

19a

492 U.S. 573 (1989) (display of menorah next to

Christmas tree acceptable whereas display of creche alone

unacceptable); Lynch v. Donnelly, 465 U.S. 668, at 680

(1984) (context of creche display critical). Moreover,

public school personnel should be animated by secular

motives or goals — not by a desire to subtly indoctrinate.

24. A school may also teach its students objectively

about religious holidays, including their religious

significance, without offending the Establishment Clause

when presented as part of a secular education program.

Florey v. Sioux Falls Sch. Dist., 619 F.2d 1311 (8th Cir.),

cert. denied, 449 U.S. 987 (1980). In Florey, the court

upheld a school’s holiday policy, noting that it is

censtitutionally permissible for a school to “advance the

students’ knowledge and appreciation of the role that our

religious heritage has played in the social, cultural and

historical development of civilization.” Jd. at 1314

(quoting policy). See also Clever v. Cherry Hill Township

Bd. of Educ., 838 F. Supp. 929 (D.N.J. 1993) which

considered the constitutionality of a school board’s policy

regarding “the use of cultural, ethnic, or religious themes

in our educational program.” Id. at 932. The court

upheld the policy for a variety of reasons, observing that

“the use of appropriate classroom and central displays is

clearly a recognized and legitimate educational

technique.” Id. at 939.

25. Any student should always be permitted to opt out

of holiday-related events and programs because of

strongly held religious sentiments.

26. Devotional or strictly religious exercises must be

avoided.

27. Whenever feasible, schools should strive to avoid

scheduling exams and special events on days when it is

20a

foreseeable that some students will be absent to celebrate

religious holidays. Similarly, if a school gives awards for

perfect attendance, it should not withhold’ such

recognition from students whose only absence is

necessitated by holidays where observance is prescribed

by the student’s faith.

The Equal Access Act

(The Equal Access Act) means that the school

will have the same regulations for a-religious

club as for any 6ther club, no more, no less.

Senator Mark Hatfield

28. School officials should be familiar with the federal

Equal Access Act (20 U.S.C.S. §4071, et seqg.). The Act

guarantees, under certain’ circumstances, student

religious and Bible study groups equal access and

opportunity to conduct meetings in the secondary public

schools on the same basis as other noncurriculum related

student groups. See Attorney General’s attached memo-

randum. Congress’ primary purpose in passing the Act,

according to the Supreme Court, was to end “perceived

widespread discrimination against religious speech in

public schools.” Mergens, 496 U.S. 226, 239 (1990). While

Congress recognized the constitutional prohibition on

governmental promotion of religion, it also believed that

nonschool-sponsored student speech, including religious

speech, should not be excised from the school environ-

ment.

29. There are three basic Guidelines under the Equal

Access Act:

30. The first is nondiscrimination. If a_ public

secondary school permits student groups to meet for

student-initiated activities not directly related to the

school curriculum (such as chess club, ski club, scuba

2la

club, etc.), it is required to provide equal access on the

same basis to religious groups. The school cannot

discriminate against any students conducting such

meetings on the basis of the religious, political,

philosophical, or other content of the speech at such

meetings. Religious speech and expression are to receive

equal treatment.

31. The second basic concept is protection of student-

initiated and student-led meetings. Student-initiated

means that the students themselves, without influence or

promotion by school personnel, seek to meet and that the

students will direct and control the religious discussion

without governmental participation.

32. The third basic concept is local control. The public

schools may apply content-neutral disciplinary rules to

avoid disruption, or reasonably regulate the time, place

and manner of such meetings. For instance, a school may

establish a reasonable time period for meetings on any

one school day, a combination of days or all school days.

It may assign rooms, and enforce student discipline codes.

33. To comply with constitutional and statutory law,

the public schools must allow religious student groups

equal access to meeting room facilities and other locations

at school as made available to noncurriculum student

groups. Similarly, religious student groups should have

equal access to facilities made available to noncurriculum

student groups to announce their meetings. These may

include, for example, the student newspaper, bulletin

boards, the public address system and club fairs. Where a

religious group is the first noncurriculum group to apply

for such access, the school may allow such group access

provided that it adopts a policy that would also allow non-

religious noncurriculum groups equal access. The right of

a lawful, orderly student group to meet, however, cannot

22a

depend on the approval of other students and cannot be

denied because other students object to their access. A

student group should not be denied equal access merely

because its views are unpopular.

34. Public school authority may also not retaliate

against any student or teacher because of his or her

association with a religious organization.

Teacher Expression of Religion

35. As public employees, and agents of the public

schools, the speech rights of teachers are not absolute and

must be balanced against the school’s legitimate right and

duty to maintain order, perform its obligations to the

population served, and avoid government sponsorship of

religion. Teachers must be cognizant of their great

influence in shaping student values and their overarching

duty not to use their position to indoctrinate students into

their religious beliefs or lack thereof.

36. As a general matter, neither the Free Exercise nor

Free Speech clauses provide teachers an unqualified right

to engage in religious expression with students at school.

Because teachers play a central role in setting values for

our children, they must also bear responsibility for their

actions which impermissibly create a danger of

establishing religion in the public schools, including

misapprehension by pupils that the public schools sponsor

the teacher's viewpoint. Teachers should not lead

students in devotional activities during class or school-

sponsored activity, or encourage students to participate

with the teacher in religious activity before or after

school. A teacher who wishes to participate in voluntary

student, religious activity during free time should be

careful that his or her participation is not misinterpreted

by students as official sponsorship of religious belief. The

23a

circumstances of each case, including the maturity of the

students and the context and duration of the event must

be professionally considered.

37. A teacher may respond honestly, in a noncoercive,

and nonindoctrinating manner, to student-initiated

inquiries about religion, just as a teacher may respond in

an appropriate manner to student inquiries about

political, philosophical or other secular _ interests.

Balance, degree and (ffairness are important

considerations, and the specific question may best be

answered by referring the student to his parents.

38. Teachers should be able to meet with other

teachers for private religious speech, including prayer,

meditation and reading of religious materials, during

their free time, such as immediately before or after class

or during breaks or lunch. As professionals, teachers

need to be careful however that their actions are not

misinterpreted by students.

Moments of Silence

39. The Code of Virginia (§ 22.1-203) authorizes the

school board of each school division to establish the daily

observance of one minute of silence in each classroom of

the division. In establishing policy, the school board must

be careful that its policy is animated by secular

justifications, not merely as a pretense to encourage

prayer. Public schools may provide students, for

* Cf. Wallace v. Jaffree, 472 U.S. 38 (1985); Walter v. West

Virginia Bd. of Educ., 610 F. Supp. 1169 (S.D. W. Va. 1985). In

Jaffree, Alabama's moment of silence statute was invalidated by the

U.S. Supreme Court, partly because legislative record evidenced

primarily religious, rather than secular purpose. Virginia's statute can

be defended as promoting lawful goals, and not simply to endorse

religion. Care must be taken that it is administered neutrally.

24a

example, with a minute of silence to collect themselves

and put their upcoming tasks in meaningful perspective

for the individual student. A brief minute of silence may

also fulfill other secular objectives, including maintenance

of discipline.

40. The teacher must ensure that all pupils remain

seated and silent and make no distracting display to the

end that each pupil in the exercise of his or her individual

choice and consistent with freedom of conscience, may

engage in any silent activity (including prayer) which

does not interfere with, distract, or impede other pupils in

the like exercise of individual choice. The teacher may

say the following, for example, before stipulating a

minute of silence: “We will now observe a minute of

silence. You may, in the exercise of your individual

choice, meditate, pray or engage in any other silent

activity which does not interfere with, distract or impede

other pupils. You must remain seated and silent.”?

41. The teacher may not indicate his or her views on

whether students should use the time to pray or not to

pray. The teacher should also not use the time to pray

aloud in front of other students, nor permit any other

student, or group of students to pray aloud.

Graduation Prayer

School Initiated Prayer, Class Initiated Prayer

42.It is firmly settled in the law that the

Establishment Clause forbids school-sponsored prayer or

religious indoctrination, as well as any school initiative

designed to endorse prayer generally or sponsor a

* This language is drawn from § 22.1-203 of the Code of

Virginia.

25a

particular religious viewpoint. In 1992, the United States

Supreme Court held in Lee v. Weisman, 112 S. Ct. 2649,

120 L. Ed. 2d 467 (1992), that school sponsored prayer,

even nonsectarian and nonproselytizing prayer, at

graduation ceremonies violated the Establishment

Clause.

43. In Weisman, the participation and involvement of

school personnel was pervasive in deciding whether there

would be a religious invocation, selecting the speaker and

even dictating the contents of the invocation through a

pamphlet setting forth guidelines for “nonsectarian”

prayer. In deciding that such pervasive involvement by

school personnel was unconstitutional, a divided Court (5-

4) remarked:

These dominant facts mark and control the

confines of our decision: State officials direct the

performance of a formal religious exercise at

promotional and _ graduation ceremonies for

secondary schools. Even for those students who

object to the religious exercise, their attendance

and participation in the state-sponsored religious

activity are in a fair and real sense obligatory.

112 S. Ct. at 3655, 120 L. Ed. 2d at 480.

44.The Court was concerned not only with the

pervasive degree of school participation in _ religious

matters, but also with the resulting subtle coercive

pressures that accompany any official religious

observance as part of a school-sponsored event. The

argument that the ceremony was “voluntary” was rejected

by the majority over the objections of the dissenting

Justices. Even though objecting students were not

required to attend graduation to receive their diplomas,

26a

such attendance was “in a fair and real sense obligatory.”

Id. at 2655, 120 L. Ed. 2d at 480. As the Court observed:

Everyone knows that in our society and in our

culture high school graduation is one of life’s most

significant occasions ... Attendance may not be

required by official decree, yet it is apparent that a

student is not free to absent herself from the

graduation exercise in any real sense of the word

“voluntary,” for absence would require forfeiture of

those intangible benefits which have motivated the

student through youth and all her high school

years.

Id. at 2659, 120 L. Ed. 2d at 486.

45. Nothing in Weisman would prohibit students from

themselves organizing a privately sponsored

baccalaureate service before or following the graduation

ceremony off the school grounds. See 112 S. Ct. at 2677,

120 L. Ed. 2d at 508.

46. Devotional exercises at school sponsored events do

not become constitutional simply by excusing objecting

students from attendance.

47. The decision in Weisman has produced a split in

the lower courts over the constitutionality of class-

initiated, student led prayer at graduation ceremonies.

This issue will necessarily be uncertain in the law until

resolved by the United State Supreme Court. For

example, a federal appeals court in Texas approved a

school board’s policy allowing graduation prayer where a

majority of the graduating class voted for “neutral” prayer

by a student volunteer. Jones v. Clear Creek Indep. Sch.

Dist., 977 F. 2d 963 (5th Cir. 1992), cert. denied, 113 S. Ct.

2950, 124 L. Ed. 2d 697 (1993). In Jones, unlike

Weisman, school personnel neither made the decision to

27a

include a religious invocation or to supervise the delivery

and preparation. They merely abided by the collective

decision of the senior class, as expressed through a vote.

The Fifth Circuit reasoned that the Establishment Clause

is a restraint on government and not when prayer is “the

result of student, not government choice.” Jd. at 968.

Other lower courts have used reasoning similar to the

Fifth Circuit’s..°. However, there is also a substantial

body of case authority to the contrary, including a

decision by the Ninth Circuit that rejected the rationale

in Jones and reached the opposite result, holding that

when school officials “delegate” a decision on prayer to a

vote of the senior class, the resulting election in favor of

prayer is still state-action. Harris v. Joint Sch. Dist. No.

241, 41 F. 3d 447 (9th Cir. Nov. 18, 1994). A similar

result was reached by a federal district court enjoining

the Loudoun County public schools from permitting

student led and initiated prayer at graduation

ceremonies. See Gearon v. Loudoun County Sch. Bd., 844

F. Supp. 1097 (E.D. Va. 1993) (declaring that organized

prayer at a high school graduation is inherently divisive

and unconstitutional no matter who inspires and delivers

1 Stein v. Plainwell Community Schs., 822 F.2d 1406 (6th Cir.

1987) (validating nonsectarian student led and initiated invocation);

Adler v. Duvall Co. Sch. Bd., 851 F. Supp. 446 (M.D. Fla. 1994) argued

orally, #94-2638 (11th Cir., March 7, 1995); Albright v. Board of Educ.

of Granite Sch. Dist., 765 F. Supp. 682 (D. Utah 1991) (finding that

religious invocation was ceremonial in nature without evidence of

coercion); and Grossberg v. Deuschio, 380 F. Supp. 285 (E.D. Va. 1974)

(holding that brief nonsectarian prayer did not substantially burden

religious liberty).

28a

the invocation).'' Only the Loudoun County public

schools are bound by Gearon.'?

48.The Supreme Court has not decided a case

presenting the specific question whether religious

invocations may be permitted when they result solely

‘| See also ACLU v. Blackhorse Pike Regional Bd. of Educ., No.

93-5368 (3d Cir. June 25, 1993) (unpublished opinion); Friedmann v.

Sheldon Community Sch. Dist., No. 93-4052 (N.D. lowa May 28, 1993),

reversed on standing grounds, 995 F.2d 802 (8th Cir. 1993). The

reasoning in these cases follows decisions in other analogous contexts.

In Collins v. Chandler Unified Sch. Dist., 644 F.2d 759 (9th Cir.), cert.

denied, 454 U.S. 863 (1981), the Ninth Circuit Court of Appeals held

that student-initiated and led prayer at school assemblies was

unconstitutional; in B. v. Treen, 635 F.2d 897 (5th Cir. 1981), affd, 455

U.S. 913 (1982), the Court held that student volunteers could not lead

classmates in prayer even though objecting students could be excused;

and in Doe v. Duncanville Indep. Sch. Dist., 994 F.2d 160 (5th Cir.

1993), the Court invalidated the practice of offering prayers before a

high school basketball game. In Doe, the Fifth Circuit stated that

Weisman “is merely the most recent in a long line of cases carving out

of the Establishment Clause what essentially amounts to a per se rule

prohibiting public-school-related or-initiated religious expression or

indoctrination.” Jd. at 165.

‘2 Injunctive orders bind only the litigating parties, their agents

and privies. See Fed. R. Civ. P. 65(d). While other Federal judges in

Virginia would undoubtedly consider Gearon before ruling in a similar

case, they are free to reach a different result. The principle that a

decision by one federal district judge does not bind other judges —

even in the same district — is amply demonstrated by a comparison of

Vaughn v. Reed, 313 F. Supp. 431 (W.D. Va. 1970), and Crockett v.

Sorenson, 568 F. Supp. 1422 (W.D. Va. 1983). Judge Dalton held in

Vaughn that an objectively-taught, mandatory, religious education

program in public school would be consistent with the First

Amendment. Judge Kiser, in refusing to follow the opinion of Judge

Dalton, found Judge Dalton’s opinion unpersuasive on that point and

held that such programs must be optional. Crockett, 568 F. Supp. at

1431.

29a

from a decision by the senior class through some electoral

mechanism.'’ School divisions considering such policy

should review existing case authority with legal counsel.

Consideration includes: (1) the degree of governmental

participation and oversight locally desired, (2) whether

the activity results in any coercive pressure from teachers

or peers on objecting students to participate at the

expense of forfeiting benefits, (3) whether the activity is

animated primarily by secular purposes,’ and (4)

whether the circumstances wil) suggest appearances of a

school imprimatur, such as, for example, promotional

statements in official publications or announcements.

The test may very well be whether the activity, in

practical effect, creates an impermissible appearance to a

reasonable person that the public schools are supporting a

religious perspective or viewpoint. Even in Jones, the

court hastened to acknowledge that “we understand

government to unconstitutionally endorse religion when a

reasonable person would view the challenged government

action as a disapproval of her contrary religious choices.”

Jones, 977 F.2d at 968.

‘8 The recent Harris case may furnish the Supreme Court an

opportunity to resolve this issue. At the time of the adoption of the

Guidelines, a petition for a Writ of Certiorari is pending.

‘4 There is case authority concluding that any governmental

promotion of prayer during school-sponsored event [sic] is necessarily

motivated by impermissible religious reasons. There is also authority

to the contrary where the evidence is credible proving secular motives.

For example, in Adler the Court was persuaded on the evidence of

legitimate secular motives; namely, a desire to solemnize or set a

serious note for the ceremony and to respect the choices and freedom of

speech of students.

30a

Individually Initiated Prayer by a Student Speaker

49. It is often the case that one or more students from

the Senior Class are selected to speak at graduation, such

as the Senior Class President, Valedictorian and

Salutatorian. (While discussed in terms of a high school

graduation, these same considerations would apply to a

graduation or promotional ceremony from middle school.)

Depending on local practice, the Senior Class may also

elect one or more students to speak. Unlike the case of

organizing and permitting collective prayer at graduation,

school personnel may not censor a_ student who

voluntarily chooses, on his or her own initiative, to

include religious themes or references, including prayer,

in a graduation address. If a student speaker elects on

his own to use a portion of his allotted time delivering a

prayer, or otherwise reflecting on the event of graduation

from a religious perspective, it is not a violation of the

Establishment Clause for the school to permit him to do

so. Indeed, for the school to prohibit the speaker from

doing so could violate his or her rights under the First

Amendment.!5

50. If the student speakers are selected by school

officials (rather than by students), they should be selected

on wholly secular criteria (e.g., class officers, class rank or

other achievement), not based on what school officials

'5 While these conclusions seem plainly mandated by well-

established constitutional principles, at least one federal district court

appears to have reached the opposite result. See Gearon, 844 F. Supp.

at 1100, wherein Judge J. Bryan banned all graduation prayers in the

Loudoun County public schools. Due to financial constraints the local

school board did not appeal this case. Therefore, Gearon is binding on

the Loudoun County public schools.

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perceive as the likelihood that the speakers chosen would

(or would not) pray.

51. School officials should neither encourage nor

discourage them [sic] students from including a religious

reference or offering prayer. For the problems associated

with school and class decisions about whether to have

prayer, see previous section.

52. If a student speaker advises school officials of his

or her intention to offer a prayer or include a religious

reference, school officials may not prohibit the speaker

from doing so; but, neither should they print up in their

official graduation program that a prayer or religious

reference is expected or will occur.

53. School officials are probably entitled to review a

student speaker's prepared remarks to insure that they

are germane to the event of graduation. If no prayer or

religious reference is found, the school officials should not

ask the speaker to include one; if one is found, school

officials should not require the speaker to excise it.

Baccalaureates

54.The United States Supreme Court has never

explicitly ruled on _ the’ constitutionality of a

baccalaureate, but the same constitutional considerations

discussed in these Guidelines apply. At least two lower

federal courts have found baccalaureate services involving

minimal involvement of school officials to be

constitutional. !®

‘6 Verbena United Methodist Church v. Chilton County Bd. of

Educ., 765 F. Supp. 704 (M.D. Ala. 1991), found constitutional a

baccalaureate service in the high school auditorium which had been

designated “public forum,” and where there was no evidence that

32a

55. The public school itself may not sponsor or arrange

private baccalaureates. - Such religious services may

always be arranged by students, parents and community

groups off the school premises. If any group seeks to

conduct a baccalaureate on premises and after hours, they

can be granted use of school facilities on the same basis as

may be afforded other student or community groups. The

administration of the event must, however, be careful to

avoid circumstances reasonably suggesting sponsorship

by the public schools.

56.In order to accommodate students wh: may be

interested in hearing about a baccalaureate service, the

school may permit scheduling notices to be included on

bulletin boards and over public address systems on the

same basis as other scheduling notices; but care should be

taken to make sure that there is no appearance of school

sponsorship or official encouragement of participation.

The use of disclaimers is recommended. Teachers and

school administrators who choose to attend should not

suggest or encourage their students to attend.

57. Teachers and school administrators may attend

the baccalaureate in their capacity as private citizens, but

should not plan, direct, control or supervise the ceremony.

school authorities created appearances of school sponsorship. — In

Randall v. Pegan, 765 F. Supp. 793 (W.D.N.Y. 1991), a district court

upheld a_ school’s’ decision to lease its auditorium to a

nondenominational group for a baccalaureate service. Under the

Lemon test, the Court found that the open access policy furthered a

secular purpose; ?) the school’s disclaimers disassociated it sufficiently

so as not to advance religion; and 3) administrative oversight of the

event did not foster excessive entanglement with religion.

33a

Release Time Programs

58. Release time programs that permit students to

attend religious instruction off the school premises have

been constitutionally upheld as accommodations of the

spiritual needs of our people. Zorach v. Clauson, 343 U.S.

306, 314 (1952). (Such programs “respect[] the religious

nature of our people and accommodate{] the public service

to their spiritual needs.”) The mere release of students

during school hours to attend religious courses is not per

se unconstitutional. The administration of the program

must be carefully managed to avoid excessive

entanglement with religion. Lanner v. Wimmer, 662 F.2d

1349 (10th Cir. 1981) (registration and record keeping of

students permissible). However, the public schools should

not arrange, sponsor or pay for such programs, nor seek to

influence or pressure students to participate in such

programs. Moreover, in /llinois ex re!. McCollum v. Board

of Educ., 333 U.S. 203 (1948), the Supreme Court held

that it was unconstitutional for a public school to permit

voluntary religious instruction on school premises during

release-time periods. School authority should not

supervise the off-campus religious instruction. Agents of

the religious institution should not be permitted at school

during school time to recruit students to participate in

their religious exercises. Public school teachers should

also not recruit students for the religious instruction

program. In order to avoid excessive entanglement with

religion, as a general rule no academic credit should be

conferred for religious instruction. But see Lanner uv.

Wimmer, 662 F.2d 1349 (10th Cir. 1981).

59. The logistics of a constitutional release time

program require carefui planning, knowledge of the case

law in this area and attention to detail. School boards

who wish to release students to attend off-school

34a

programs may do so but should consult with their local

counsel regarding registration, class location, attendance

policies and class scheduling. See, for example, Doe v.

Shenandoah County Sch. Bd., 737 F. Supp. 913, 917,

(W.D. Va. 1990); Smith v. Smith, 523 F.2d 121, 122 (4th

Cir. 1975), cert. denied, 423 U.S. 1073 (1976).

Equal Access By Community Groups

60. Once the school district opens its facilities for use

by students or community groups during non-school

hours, the Free Speech clause of the First Amendment

generally requires that the _ school district not

discriminate based on the point of view of groups seeking

equal access to those facilities. See Cornelius v. NAACP

Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 800

(1985); Perry Educ. Ass'n v. Perry Local Educators’ Ass'n,

460 U.S. 37, 46 (1983). The denial of access to reiigious

groups can constitute viewpoint discrimination in

violation of the Free Speech clause of the First

Amendment. Lamb’s Chapel v. Center Moriches Union

Free Sch. Dist., 113 S. Ct. 2141, 124 L. Ed. 2d 352 (1993).

61. Use of school facilities by religious community

groups after school hours should be granted on the same

basis as other nonreligious community groups.'’? A group

17 Fairfax Covenant Church v. Fairfax County Sch. Bd., 17 F.3d

703 (4th Cir.), cert. denied, 114 S. Ct. 2166, 128 L. Ed. 2d 888 (1994).

Good News Sports Club v. School Dist., 28 F.3d 1501 (8th Cir. 1994)

(parent-led religious group has right to meet immediately after school

at jurior high school when Boy Scout programs are permitted to meet);

Youth Opportunities Unlimited, Inc. v. Board of Pub. Educ. of Sch.

Dist., 769 F. Supp. 1346 (W.D. Pa. 1991).

35a

may not be denied use of meeting space solely because its

speech, purpose or identity is religious.'*

62. School districts may not charge religious groups a

higher rental fee than nonreligious groups.'® No rental

fee may be charged religious groups if none is charged

nonreligious groups.

Conclusion

63. Necessarily, all of the foregoing still requires

thoughtful consideration of the pertinent circumstances.

The United States Supreme Court has invariably

emphasized “the importance of detailed analysis of the

facts.” Illinois ex rel. McCollum v. Board of Educ., 333

U.S. 203, 226 (1948). And, while the judicial tests may

vary depending upon the particular context, public school

authorities should be familiar with the general concerns

of the law and the dangers sought to be avoided. It is

therefore important that the attached memorandum from

the Office of the Attorney General be considered. It is

fundamentally important that school authorities

understand their constitutional duties to reasonably

accommodate the religious heritage and pluralism of our

people, to avoid an establishment of religion and, at the

same time, not to adopt the impermissible view that any

1 Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 113

S. Ct. 2141, 124 L. Ed. 2d 352 (1993).

‘9 Fairfax Covenant Church v. Fairfax County Sch. Bd., 17 F.3d

703 (4th Cir.), cert denied, 114 S. Ct. 2166, 128 L. Ed. 2d 888 (1994).

36a

and all religious expression must be banished from the

public school.

37a

MEMORANDUM

TO: ALL CONCERNED

FROM: THE OFFICE OF THE ATTORNEY

GENERAL

DATE: January 9, 1995

RE: Memorandum of Legal Principles

Animating Guidelines

These Guidelines and accompanying memorandum

are not intended as regulatory displacements of local

discretion, but rather as guidance to _ school

administrators, teachers, parents and students on the

relevant constitutional and statutory principles and

considerations. '

These Guidelines and accompanying memorandum

also do not purport to provide definitive answers to all of

the possible issues and varied fact scenarios as may exist

in our public schools. Indeed, the United States Supreme

Court has invariably cautioned that decisions in this area

of law are keenly fact-sensitive.

Our public school officials, administrators and

teachers must, however, have a working knowledge of the

laws and principles. In so doing, government responsibly

promotes the cherished freedoms underlying both our

federal and state constitutions. And, in so doing, lawful

decision-making is promoted, minimizing public school

'This memorandum, which expiains the salient legal principles

governing religious expression in publ« schools, should be reviewed

and considered by local school authorities ana their counsel as

background material integral to an informed understanding of specific

applications in cases contained in the Guidelines.

38a

resources being diverted to litigation defense. Such

contests are not simply interesting debates on principle.

Violations of protected rights may result in substantial

damage awards and prevailing plaintiffs are entitled,

under federal law, to reimbursement of their reasonable

attorney fees. See 42 U.S.C. § 1988.

I. Controlling Constitutional and Statutory

Provisions

A. United States Constitution

The First Amendment to the United States

Constitution provides, in pertinent part, that: “Congress

shall make no law respecting an establishment of religion,

or prohibiting the free exercise thereof; or abridging the

freedom of speech, or of the press; or the right of the

people peaceably to assemble ...”

The foregoing embodies fundamental restraints on the

power of government. Under the 14th Amendment, these

restraints apply not only to the “laws of Congress,” but

also to the policies, practices and decisions of state and

local government, including public school officials,

administrators and teachers entrusted with our public

school system. Cantwell v. Connecticut, 310 U.S. 296

(1940); Engel v. Vitale, 370 U.S. 421 (1962).

B. Constitution of Virginia (1971)

The Commonwealth of Virginia, through its own

constitution, also guarantees the free exercise of religion

and a corresponding prohibition on state and local

government from becoming entangled in religious affairs:

Art. I, § 16. Free exercise of religion; no

establishment of religion. — That religion or

the duty which we owe to our Creator, and the

manner of discharging it, can be directed only by

39a

reason and conviction, not by force or violence;

and, therefore, all men are equally entitled to the

free exercise of religion .... No man shall be

compelled to frequent or support any religious

worship, place, or ministry whatsoever ... nor

shall otherwise suffer on account of his religious

opinions or belief; but all men shall be free to

profess and by argument to maintain their

opinions in matters of religion .... And the

General Assembly shall not prescribe any religious

test whatever, or confer any peculiar privileges or

advantages on any sect or denomination, or pass

any law requiring or authorizing any religious

society, or the people of any district within this

Commonwealth, to levy on themselves or others,

any tax for the erection or repair of any house of

public worship, or for the support of any church or

ministry”, but it shall be left free to every person to

select his religious instructor, and to make for his

support such private contract as he shall please.

(Emphasis added.)

C. Federal Statutory Provisions

The United States Congress has enacted two

pertinent federal statutes: the Equal Access Act and the

Religious Freedom Restoration Act.

2Virginia’s Constitution prohibits appropriations of public funds to

religious organizations and sectarian schools. See Va. Const. art. IV, §

16 and art. VIII, § 10, and Almond v. Day, 197 Va. 419, 89 S.E.2d 851

(1955); Miller v. Ayres, 213 Va. 251, 191 S.E.2d 261 (1972); Phan v.

Virginia, 806 F.2d 516 (4th Cir. 1986).

40a 4la

1. Equal Access Act, 20 U.S.C.S. § 4071, et seq. | (3) employees or agents of the school or

government are present at religious meetings

The Equal Access Act basically guarantees student only in a nonparticipatory capacity;

religious and Bible stud ups ual access ; i

opportunity to conduct mentiane te the public ood om oa — ey oe

schools on the same basis as any noncurriculum-related substantiany poorer — = Seneany eaneuet

student group.’ The key text of the statute provides: of educational activities within the school; and

(5) nonschool persons may not direct, conduct,

(a) It shall be unlawful for any public secondary control, or regularly attend activities or

school which receives Federal financial assistance student groups.‘

ore my limited open forum to deny equal 2. Religious Freedom Restoration Act, 42

7 opportunity to, or discriminate U.S.C.S. § 2000bb-1

against, any students who wish to conduct a sci

meeting within that limited open forum on the The Religious Freedom Restoration Act (“RFRA”)

basis of the religious, political, philosophical, or basically prohibits government, including the public

other content of the speech at such meetings. schools, from substantially burdening religion. An

(b) A public secondary school has a limited open forum

whenever such school grants an offering to or

opportunity for one or more noncurriculum related

student groups to meet on school premises during Nothing in this title [20 USCS §§ 4071 et seq.] shall be

noninstructional time. construed to authorize the United States or any State or

er a fair opportunity (1) to influence the form or content of any prayer or other

‘Congress has further provided in subsection (D) that:

to students w ‘thi “se er

ga ser ho = to conduct a meeting within religious activity;

imited open forum if such school uniformly (2) to require any person to participate in prayer or any

provides that: other religious activity;

to expend public funds beyond the incidental cost of

providing the space for student-initiated meetings;

(4) to compel any school agent or employee to attend a

(1) the meeting is voluntary and student-initiated: (3)

(2) there is no sponsorship of the meeting by the

school, the government, or its agents or school meeting if the content of the speech at the

employees; meeting is contrary to the beliefs of the agent or

employee;

fie (5) to sanction meetings that are otherwise unlawful;

“t Congress has not defined “noncurriculum-related” student group. (6) to limit the rights of groups of students which are not

The United State Supreme Court has indicated that the term of a specified numerical size; or

encompasses student groups meeting for purposes not directly related (7) to abridge the constitutional rights of any person... .

to the official curriculum; such as political clubs, chess and stamp

clubs, as opposed to a French club for example. Board of Educ. of

Westside Community Schs. v. Mergens, 496 U.S. 226 (1990).

‘While any discussion of religious expression in the public schools

would be incomplete without mention of this Act, it should also be

noted that the Act represents an attempt by Congress to correct what

42a

important exception is provided where “compelling”

governmental interests are at stake and a “least

restrictive” means is employed to further those ends. In

more common parlance, public school authority must be

prepared to show that its substantial burdens on religious

liberty are justified by very important goals and that the

means chosen is “least restrictive,” that is, there being no

less-intrusive alternative which would achieve or

safeguard the governmental purposes at stake. In

pertinent part, the Religious Freedom Restoration Act

provides:

(a) Government shall not substantially burden a

person's exercise of religion even if the burden

results from a rule of general applicability,

except as provided in subsection (b).

(b) Government may substantially burden a

person's exercise of religion only if it

demonstrates that application of the burden to

the person —

(1)is in_ furtherance of a_ compelling

governmental interest; and

(2) is the least restrictive means of furthering

that compelling governmental interest. . . .

42 U.S.C.S. § 2000bb-1.

D. Virginia Statutory Provisions. Virginia’s

General Assembly has also enacted the following:

(1) § 22.1-203. Daily observance of one minute of

silence. — In order that the right of every pupil to

it perceives as an ill-advised constitutional interpretation by the

United States Supreme Court. While this Act may be subject to

challenge on grounds that it violates the separation of powers doctrine,

no court has ruled on the issue so far.

43a

the free exercise of religion be guaranteed within

the schools and that the freedom of each individual

pupil be subject to the least possible pressure from

the Commonwealth either to engage in, or to

refrain from, religiwus observation on_ school

grounds, the school board of each school division is

authorized to establish the daily observance of one

minute of silence in each classroom of the division.

Where such one-minute period of silence is

instituted, the teacher responsible for each

classroom shall take care that all pupils remain

seated and silent and make no distracting display

to the end that each pupil may, in the exercise of

his or her individual choice, meditate, pray, or

engage in any other silent activity which does not

interfere with, distract, or impede other pupils in

the like exercise of individual choice.

(2) § 22.1-203.1. Student-initiated prayer. — In

order that the right of every pupil to the free

exercise of religion be guaranteed within the

schools and that the freedom of each individual

pupil not be subject to pressure from the

Commonwealth either to engage in, or to refrain

from, religious observation on school grounds,

consistent with constitutional principles of

freedom of religion and separation of church and

state, students in the public schools may

voluntarily engage in student-initiated prayer.

Va. Code § 22.1-203.1 does not legislate an exception

to the First Amendment of the United States

Constitution. It also reminds us that the public schools

44a

must serve students of many faiths on an equal basis

without pressure:

(T]hat the freedom of each individual pupil not be

subject to pressure from the Commonwealth,

either to engage in, or to refrain from, religious

observation on school grounds... .

Va. Code § 22.1-203.

Because of its influence in shaping values, public

school authorities must be sensitive to the great variety of

behets and non-beliefs among its pupils. Aligning the

prestige, authority or resources of the public schools in

support of a particular religious perspective or statement

can be as polarizing and debilitating as directly

interfering with religious liberty. This concern is

heightened in matters of prayer. Such expressions are

deeply personal and, notwithstanding the best of

intentions, government may neither inhibit prayer nor

sponsor prayer in the public schools. Even appearances of

such sponsorship can be polarizing and confusing, and

spark a constitutional challenge to perceived favoritism

by public school authority. Application of the statute

therefore requires basic understanding of the relevant

considerations animating our First Amendment:

Whether the key word is “endorsement,”

“tavoritism, or “promotion,” the essential principle

remains the same. The Establishment Clause, at

the very least, prohibits government from

appearing to take a position on questions of

religious behef or from making adherence to a

religion relevant in any way to a person's standing

in the political community.

County of Allegheny v. ACLU, 492 U.S. 573, 593-594

45a

3. Compulsory School Attendance Statutes

State law provides for home instruction under certain

conditions (§ 22.1-254.1) and further excuses children

from the compulsory school attendance laws on religious

grounds. School boards are expressly required to “excuse

from attendance at school any pupil who, together with

his parents, by reason of bona fide religious training or

belief, is conscientiously opposed to attendance at school.”

Va. Code § 22.1-257(A)(2). A bona fide religious training

or belief however “does not include essentially political,

sociological, or philosophical views or merely a personal

moral code.” See § 22.1-257(D) and Johnson v. Prince

William County Sch. Bd., 241 Va. 383, 404 S.E.2d 209

(1991) (upholding school board determination that

objections to compulsory attendance were essentially

philosophical and not religious).

Il. The Conceptual Framework In The Law

The foregoing guarantees and restrictions require

government, including public school officials,

administrators and teachers, to steer a “neutral course” in

matters of religion. Zorach v. Clauson, 343 U.S. 306

(1952). This generally means that the public schools may

not use their personnel, influence or resources to advance

or inhibit religion. Jllinois ex rel. McCollum v. Board of

Educ., 333 U.S. 203 (1948).

It is also important to keep in mind that the

Constitution also forbids the public school from

discriminating among religions, as well as promoting

religion generally.® Everson v. Board of Educ., 330 U.S. 1

"Although not directly addressed by any case decision, it would

also appear to be unconstitutional for a school to promote atheism or

agnosticism

46a

(1947) and Board of Education v. Grumet, _ U.S.

S. Ct. 2481, 129 L. Ed. 2d 546 (1994).

114

The required “neutrality” can be particularly daunting

in the context of the public schools where freedom of

speech is so fundamental, and where our religious

pluralism is so substantial. While application of law can

sometimes be unpredictable, good decisions can be made

with common sense, a basic understanding of the legal

principles, and overarching sensitivity to the principle

that our schools are public, serving children of all faiths.

A. Constitutionally Protected Religious

Environment

Public school authority is not required to banish all

religious expression from our public schools. “The First

Amendment was never intended to insulate our public

institutions from any mention of God, the Bible or

religion.” Crockett v. Sorenforson, 568 F. Supp. 1422,

1425 (W.D. Va. 1983). Indeed, in some instances, the

constitutional freedoms of speech and religion require

governmental respect for, and accommodation of, religious

expression in the public schools.

Students, as well as school employees, do not forfeit

their constitutional rights at the “school house gate.”

Tinker v. Des Moines Indep. Community Sch. Dist., 393

U.S. 503, 506 (1969). Religious expression by individuals

is not second class speech, or a step-sister to secular

speech. “[{R]eligious worship and discussion . .. are forms

of speech and association protected by the First

Amendment.” Board of Educ. of Westside Community

Schs. v. Mergens, 496 U.S. 226 (1990); Widmar v. Vincent,

454 U.S. 263, 269 (1981); Heffron v. International Soc’y

for Krishna Consciousness, Inc., 452 U.S. 640, 647 (1981);

Niemotko v. Maryland, 340 U.S. 268 (1951) (invalidating

47a

permit requirements for religious speech in a_ public

place); Saia v. New York, 334 U.S. 558 (1948)

(invalidating an ordinance prohibiting the use of

amplifying devices to broadcast religious messages).

The following scenarios generally illustrate protected

religious expression in the public schools:

1. students discussing religion or _ reading

religious literature during lunch or other free

time’;

2. students who meet at school before or after

class on their own to pray among themselves

and without disruption to others or school

operation;

3. students expressing their religious viewpoints

in assigned work — such as poems, class

compositions, music and drawings — which are

germane to the assigned projects;

4. students expressing their viewpoints, religious

or otherwise, on their person or dress without

disruption or in violation of any uniformly

applied dress code.

Expression which is disruptive or which materially

interferes with the rights of others, or which is lewd or

obscene, may be prohibited and fairly disciplined. Bethel

7Generally, also, the freedoms of expression and religion also

protect teachers who privately discuss religious matters among

themselves in their free time without disruption. While there is no

absolute litmus test, public school teachers must be mindful that they

are authority figures and agents of government. In such capacity,

teachers may not use the machinery of the state to indoctrinate

religion in a “captive audience.” When acting for or on behalf of the

public schools, teaching personnel are subject to the same principles of

“neutrality” governing the governmental agency.

48a

Sch. Dist. v. Fraser, 478 U.S. 675 (1986); Tinker v. Des

Moines Indep. Community Sch. Dist., 393 U.S. 503 (1969).

School authority may also impose reasonable content-

neutral “time, place and manner” rules which further

their legitimate educational interests; for example,

regulating student clubs’ access to meeting rooms solely

on a “first come-first served” basis or designating rooms or

locations without regard to the content or views of the

student groups. In such instances, the speaker's religious

views or ideas (content) are not considered and school

personnel are not motivated by hostility to the religious

viewpoint. The decision or action is prompted instead by

independent and legitimate secular reasons such as

maintaining needed discipline or responsible

management of facilities.

School personnel have broader authority to regulate

expressive activity in class time or during other

instructional periods. This reasonableness standard,

while deferential to the work of the public schools, does

not provide license to be arbitrary. Its meaning is

illustrated in the following decision of the United State

Supreme Court.

In Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260

(1988), the Court examined the authority of the public

schools over “school-sponsored” student speech; that is,

speech which is “supervised by faculty members and

designed to impart particular knowledge or skills to

student participants and audiences.” Jd. at 271. The

Court upheld the right of public school authority to

ensure that their instructional programs, which have not

been opened up generally as a_ public forum for

unrestricted communication, are reasonably restricted to

their educational purposes:

49a

[W]e hold that educators do not offend the First

Amendment by exercising editorial control over the

style and content of student speech in school-

sponsored expressive activities so long as their

actions are reasonably related to legitimate

pedagogical concerns.

Id. at 273.4

Hazelwood thus recognizes that public educators are

entitled:

[T]lo assure that participants learn whatever

lessons the activity is designed to teach, that

readers or listeners are not exposed to material

that may be inappropriate for their level of

maturity, and that the views of the individual

speaker are not erroneously attributed to the

school. Hence, a school may in its capacity as

publisher of a school newspaper or producer of a

school play dissociate itself not only from speech

that would substantially interfere with (its) work

. or impinge upon the rights of other students,

but also from speech that is, for example,

ungrammatical, poorly written, inadequately

researched, biased or prejudiced, vulgar or

*Hazelwood specifically concerned the right of school authorities to

control the content of a high school newspaper produced as part of the

journalism curriculum. The student newspaper in this case did not

operate autonomously. Students received grades and academic credit

and their articles were customarily reviewed by school administrators

as part of the curriculum. The Court upheld censorship of student

editorials discussing student pregnancies and referencing sexual

activity considered inappropriate for younger students. The Court

determined that the school principal’s concern for student privacy and

suitability of material was reasonable given the circumstances.

50a

profane, or unsuitable for immature audiences. A

school must be able to set high standards for the

student speech that is disseminated under its

auspices... .

Id. at 271-272 (citations and internal quotes omitted).

Hazelwood however should not be read as authority to

impose viewpoint censorship. While administrators and

teachers may discipline and grade appropriately student

expression or conduct which does not conform to their

academic requirements, students should not penalized

solely because their religious viewpoints appear in their

work if their work otherwise conforms to the assignment.

These freedoms of individual speech and religious

expression are important concerns of the law.

Circumstances may exist where such expression must be

accommodated because no important governmental

interests are at stake. Where such interests are at stake,

such as to preserve order and discipline, school authority

may take reasonable and appropriate action.

B. Establishment of Religion: “Real Threat or

Mere Shadow”

Public school personnel must have a_ basic

understanding of the constitutional prohibition against

their establishing religion in the public schools — not only

because it is a most cherished restraint, but also to avoid

suppressing protected speech in mistaken fear of

endorsing religion. Public school authority must have

“the ability and willingness to distinguish between real

threat and mere shadow.” Abingdon Sch. Dist. v.

Schempp, 83 S. Ct. 1560, 1616 (1963).

In Lamb’s Chapel v. Center Moriches Union Free Sch.

Dist., __ US. 113 S. Ct. 2141, 124 L. Ed. 2d 352

5la

(1993), for example, the United States Supreme Court

found that a public school had violated the freedom of

speech and religion in selectively excluding a community

religious group from equal access to school facilities after

hours. Public school fears about endorsing religion were

simply not justified. A uniformly applied “equal access”

policy after hours, the Court reasoned, did not

realistically suggest school imprimatur of the viewpoint of

any organization. And, the benefits to religion in allowing

equal access to meeting space, without any special

privileges, were incidental.

The Establishment Clause, like the Free Exercise

Clause, has as its central purpose the protection of

religious liberty and individual conscience. The United

States Supreme Court has stated that the Establishment

Clause accomplishes this purpose by erecting a

mandatory “wall of separation between Church and

State.” Everson v. Board of Educ., 330 U.S. 1, 15-16

(1947). While the metaphor of a wall has become

commonly used, it can be deceiving. The wall is not so

high or so “wooden” as to absolutely proscribe any

governmental action which indirectly or incidentally

benefits religion.

The United States Supreme Court has realistically

acknowledged that “ ‘total separation is not possible in an

absolute sense’.... Nor does the Constitution require

complete separation of church and state; it affirmatively

mandates accommodation, not merely tolerance, of all

religions, and forbids hostility to any.” Lynch v. Donnelly,

465 U.S. 668, 672-673 (1984).

Fortunately or unfortunately, there are no “bright

lines” for determining whether governmental action has

crossed the line and established religion. The United

State Supreme Court itself has remarked that the

52a

Establishment Clause erects a “ ‘blurred, indistinct, and

variable barrier depending on all the circumstances of a

particular relationship.” 465 U.S. at 679. While not

confining itself to any particular test, the Court has

however traditionally applied a three-part test (also

known as the “Lemon test”) in searching for

impermissible establishment.’ In brief, the “Lemon test”

requires that governmental action:

¢ be animated by a secular purpose(s) or

motive(s);

° have a primary effect which neither advances

nor inhibits religion; and

e does not foster excessive entanglement with

religion.

“Unless and until overruled, the “Lemon test” provides the

required conceptual framework. The “Lemon test” has received

substantial criticism from several quarters, including justices on the

Court favoring a more predictable, less result-oriented test. Justice

Antonio Scalia has described this traditional test in picturesque terms:

Like some ghoul in a late-night horror movie that

repeatedly sits up in its grave and shuffles abroad, after being

repeatedly killed and buried, Lemon stalks our Establishment

Clause jurisprudence once again, frightening the little

children and school attorneys... .

Writing for the majority, Justice White responded:

While we are somewhat diverted by Justice Scalia’s

evening at the cinema ... we return to the reality that there is

a proper way to inter an established decision and Lemon.

however fnghtening it might be to some, has not been

overruled

Lamb's Chapel v. Center Moriches Union Free Sch. Dist.. | Vn

1138. Ct. 2141, 2148 n.7 and 2149, 124 L. Ed. 2d 352, 363 n.7 and 365

(1993)

53a

Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971).

In other words, government decisions motivated by

purely religious goals will ordinarily be invalidated. And,

even when governmental action is animated by secular

interests, it will nonetheless fail if its primary effect

advances or inhibits religion or infuses government

excessively in religious affairs. The United States

Supreme Court, for example, has invalidated statutes

authorizing voluntary student Bible readings at the

opening of each school day over the intercom system or

directly in class by a classroom teacher. The primary

effect of such practice impermissibly advanced religion in

the public schools. The Court found it immaterial that

dissenting students could leave or that religious readings

responded to the needs of the majority. School Dist. v.

Schempp, 374 U.S. 203 (1963); Engel v. Vitale, 370 U.S.

421, 430 (1962) (“Neither the fact that the prayer may be

denominationally neutral nor the fact that its observance

on the part of students is voluntary can serve to free it

from the limitations of the Establishment Clause”).'°

The Court has likewise invalidated a state law

providing for “a moment of silence” where the evidence

established no purpose other than to introduce voluntary

prayer into the public schools. Wallace v. Jaffree, 472

U.S. 38, 53 (1985). And, in Stone v. Graham, 449 U.S. 39,

41 (1980), the Court invalidated the government posting

of the Ten Commandments in the public schools where

A federal district court mm Virginia enjoined the teaching of

optional Bible classes “as a religious exercise” in the Bristol City public

schools. It was immaterial that the program was optional and that

students received no grade or academic credit. Crockett v. Sorenson,

568 F. Supp. 1422 (W_D. Va. 1983). Maniafestly, the giving of credits

for religious instruction would be constitutionally suspect

54a

there was no showing that the posting was genuinely part

of any secular instructional program or other non-

religious purpose:

This is not a case in which the Ten

Commandments are integrated into the school

curriculum, where the Bible may constitutionally

be used in an appropriate study of history,

civilization, ethics, comparative religion, or the

like.

Stone, 449 U.S. at 42.

The requisite “neutrality” in matters of religion does

not mean that the Bible or other religious material can

not be studied for its artistic and literary worth, for

example, when objectively presented as part of a secular

program. The Court has recognized that public education

may not be complete without a study of our religious

heritage or balanced comparison of religions. School Dist.

v. Schempp, 374 U.S. 203 (1963). In such circumstances,

the governmental motive or design is not. the

advancement of religion, the primary effect is to further

secular educational goals, and a balanced academic study

of religion ordinarily does not entangle government in

religious affairs.

The Court has also found no genuine establishment

concerns in providing community religious groups “equal

access to meeting rooms after hours. Lamb's Chapel,

US 1138. Ct. 2141, 124 L. Ed. 2d 352 (1993). And, in

Lynch v. Donnelly, 465 U.S. 668 (1984), the Court found

no establishment with a city’s display of a creche in a

downtown park. While a creche has manifest religious

significance, the Court found that the display was

designed to, and had the primary effect of, recognizing a

holiday with deeply rooted secular and religious origins.

55a

In contrast, and illustrating how the facts and specific

context may control the outcome, the Court invalidated a

creche display in County of Allegheny v. ACLU, 492 U.S.

573 (1989). Despite the secular motives of government,

the particular setting of a creche dominating a grand

staircase in a county courthouse had the unavoidable and

primary effect of enhancing religion. The Court noted its

fundamental question in each case whether:

“(T]he challenged governmental action is

sufficiently likely to be perceived by adherents of

the controlling denominations as an endorsement,

and by the nonadherents as a disapproval, of their

individual religious choices.”

492 U.S. at 597.

Judicial concern for the appearances’ of

governmentally established’ religion have been

particularly acute in the public school context. The

population served not only contains a “captive audience”

by reason of state law, but a population susceptible to

misapprehension in an environment geared to shaping

values. See, for example, School Dist. v. Ball, 473 U.S.

373, 390 (1985). (‘The symbolism of a union between

church and state is most likely to influence children of

tender years, whose experience is limited and whose

beliefs consequently are the function of environment as

much as of free and voluntary choice.”)

Similarly, in Lee v. Weisman, _ U.S. _, 112 S. Ct.

2649, 120 L. Ed. 2d 467 (1992), the Court invalidated

pervasive governmental participation in_ graduation

prayer. The Court also communicated concern for

coercive pressure brought to bear on those students who

do not, for religious reasons or philosophical reasons, wish

56a

to participate but must attend to obtain the benefits of

their graduation exercise.

While Lee has produced substantial debate as to its

meaning in other fact situations, Lee signals the risk of

courts’ finding government participation in prayer at

school sponsored events. This risk is pronounced when,

as a result of governmental action, school benefits and

privileges are conditioned on actual or symbolic

participation by objecting students in religious exercise.

In such circumstances, the purported “voluntary”

character of the activity is disingenuous:

The mixing of government and religion can be a

threat to free government, even if no one is forced

to participate. When the government puts its

imprimatur on a particular religion, it conveys a

message of exclusion to all those who do not adhere

to the favored belief. A government cannot be

premised on the belief that all persons are created

equal when it asserts that God prefers some.

Weisman, 112 S. Ct. at 2665, 120 L. Ed. 2d at 493.

In some cases, as with an “equal access” to meeting

rooms policy, the circumstances may however suggest to

the reasonable student that the public schools have not

sought to sponsor religion:

[T}here is a crucial difference between government

speech [or action] endorsing religion, which the

Establishment Clause forbids, and private speech

endorsing religion, which the Free Speech and

Free Exercise Clauses protect. We think that

secondary school students are mature enough and

are likely to understand that a school does not

endorse or support student speech that it merely

permits on a nondiscriminatory basis.

57a

Mergens, 496 U.S. at 250.

Because of the variety of factual contests and the

many court decisions which appear to be unpredictably

fact-intensive, a common sense sensitivity to the proper

role of a publicly supported school operation, with great

potential for influence and shaping values, should always

be a foundational guidepost. School leadership,

responsibly sensitive to the religions [sic] pluralism in the

public schools, is critical to providing learning

environment equal to all and hostile to none:

The First Amendment does not prohibit

practices which by any realistic measure create

none of the dangers which it is designed to prevent

and which do not so directly substantially involve

the state in religious exercises or in the favoring of

religion as to have meaningful and practical

impact. It is of course true that great

consequences can grow from small beginnings, but

the measure of constitutional adjudication is the

ability and willingness to distinguish between real

threat and mere shadow.

School Dist. v. Schempp, 374 U.S. 203, 308 (1963)

(requoted in Lee, 112 S. Ct. at 2661, 120 L. Ed. 2d at 488).

58a

APPENDIX C

UNITED STATES DEPARTMENT OF EDUCATION

THE SECRETARY

“..Schools do more than train children’s

minds. They also help to nurture their souls

by reinforcing the values they learn at home

and in their communities. I believe that one of

the best ways we can help out schools to do

this is by supporting students’ rights to

voluntarily practice their religious beliefs,

including prayer in schools.... For more than

200 vears, the First Amendment has protected

our religious freedom and allowed many

faiths to flourish in our homes, in our work

place and in our schools. Clearly understood

and sensibly applied, it works.”

President Clinton

May 30, i998

Dear American Educator,

Almost three vears ago, President Clinton directed

me, as U.S. Secretary of Education, in consultation with

the Attorney General, to provide every public school

district in America with a_= statement of principles

addressing the extent to which religious expression and

activity are permitted in our public schools. In accordance

with the President's directive, | sent every school

superintendent in the country guidelines on Religiaus

Expression in Public Schools in August of 1995

—— -

59a

The purpose of promulgating these presidential

guidelines was to end much of the confusion regarding

religious expression in our nation’s public schools that

had developed over more than thirty years since the U.S.

Supreme Court decision in 1962 regarding state

sponsored school prayer. I believe that these guidelines

have helped school officials, teachers, students and

parents find a new common ground on the important

issue of religious freedom consistent with constitutional

requirements.

In July of 1996, for example, the Saint Louis School

Board adopted a district wide policy using these

guidelines. While the school district had previously

allowed certain religious activities, it had never spelled

them out before, resulting in a lawsuit over the nght of a

student to pray before lunch in the cafeteria. The creation

of a clearly defined policy using the guidelines allowed the

school board and the family of the student to arrive at a

mutually satisfactory settlement.

In a case decided last year in a United States District

Court in Alabama, (Chandler v. James) involving student

initiated prayer at school related events, the court

nstructed the DeKalb County School District to maintain

tor circulation in the library of each school a copy of the

presidential guidelines.

The great advantage of the presidential guidelines,

however, 1s that they allow school districts to avoid

contentious disputes by developing a common

understanding among students, teachers, parents and the

broader community that the First Amendment does in

fact provide ample room for religious expression by

students while at the same time maintaining freedom

from goverfiment sponsored religion.

60a

The development and use of these presidential

guidelines were not and are not isolated activities.

Rather, these guidelines are part of an ongoing and

growing effort by educators and America’s religious

community to find a new common ground. In April of

1995, for example, thirty-five religious groups issued

“Religion in the Public Schools: A Joint Statement of

Current Law” that the Department drew from in

developing its own guidelines. Following the release of

the presidential guidelines, the National PTA and the

Freedom Forum jointly published in 1996 “A Parent's

Guide to Religion in the Public Schools” which put the

guidelines into an easily understandable question and

answer format.

In the last two years, I have held three religious-

education summits to inform faith communities and

educators about the guidelines and to encourage

continued dialogue and cooperation within constitutional

limits. Many religious communities have contacted local

schools and school systems to offer their assistance

because of the clarity provided by the guidelines. The

United Methodist Church has provided reading tutors to

many schools, and Hadassah and the Women’s League for

Conservative Judaism have both been extremely active in

providing local schools with support for summer reading

programs.

The guidelines we are releasing today are the same as

originally issued in 1995, except that changes have been

made in the sections on religious excusals and student

garb to reflect the Supreme Court decision in Boerne v.

Flores declaring the Religious Freedom Restoration Act

unconstitutional as applied to actions of state and local

governments.

6la

These guidelines continue to reflect two basic and

equally important obligations imposed on public school

officials by the First Amendment. First, schools may not

forbid students acting on their own from expressing their

personal religious views or beliefs solely because they are

of a religious nature. Schools may not discriminate

against private religious expression by students, but must

instead give students the same right to engage in

religious activity and discussion as they have to engage in

other comparable activity. Generally, this means that

students may pray in a nondisruptive manner during the

school day when they are not engaged in school activities

and instruction, subject to the same rules of order that

apply to other student speech.

At the same time, schools may not endorse religious

activity or doctrine, nor may they coerce participation in

religious activity. Among other things, of course, school

administrators and teachers may not organize or

encourage prayer exercises in the classroom. Teachers,

coaches and other school officials who act as advisors to

student groups must remain mindful that they cannot

engage in or lead the religious activities of students.

And the right of religious expression in school does not

include the right to have a “captive audience” listen, or to

compel other students to participate. School officials

should not permit student religious speech to turn into

religious harassment aimed at a student or a small group

of students. Students do not have the right to make

repeated invitations to other students to participate in

religious activity in the face of a request to stop.

The statement of principles set forth below derives

from the First Amendment. Implementation of these

principles, of course, will depend on specific factual

62a

contexts and will require careful consideration in

particular cases.

In issuing these revised guidelines I encourage every

school district to make sure that principals, teachers,

students and parents are familiar with their content. To

that end I offer three suggestions:

First, school districts should use these guidelines to

revise or develop their own district wide policy regarding

religious expression. In developing such a policy, school

officials can engage parents, teachers, the various faith

communities and the broader community in a positive

dialogue to define a common ground that gives all parties

the assurance that when questions do arise regarding

religious expression the community is well prepared to

apply these guidelines to specific -»ses. The Davis County

School District in Farmington, Utah, is an example of a

school district that has taken the affirmative step of

developing such a policy.

At a time of increasing religious diversity in our

country such a proactive step can help school districts

create a framework of civility that reaffirms and

strengthens the community consensus regarding religious

liberty. School districts that do not make the effort to

develop their own policy may find themselves unprepared

for the intensity of the debate that can engage a

community when positions harden around a live

controversy involving religious expression in_ public

schools.

Second, I encourage principals and administrators to

take the additional step of making sure that teachers, so

often on the front line of any dispute regarding religious

expression, are fully informed about the guidelines. The

Gwinnett County School system in Georgia, for example,

63a

begins every school year with workshops for teachers that

include the distribution of these presidential guidelines.

Our nation’s schools of education can also do their part by

ensuring that prospective teachers are knowledgeable

about religious expression in the classroom.

Third, I encourage schools to actively take steps to

inform parents and students about religious expression in

school using these guidelines. The Carter County School

District in Elizabethton, Tennessee, included the subject

of religious expression in a character education program

that it developed in the fall of 1997. This effort included

sending home to every parent a copy of the “Parent’s

Guide to Religion in the Public Schools.”

Help is available for those school districts that seek to

develop policies on religious expression. I have enclosed a

list of associations and groups that can _ provide

information to school districts and parents who seek to

learn more about religious expression in our nation’s

public schools.

In addition, citizens can turn to the U.S. Department

of Education web site (http://www.ed.gov) for information

about the guidelines and other activities of the

Department that support the growing effort of educators

and religious communities to support the education of our

nation’s children.

Finally, I encourage teachers and principals to see the

First Amendment as something more than a piece of dry,

old parchment locked away in the national attic gathering

dust. It is a vital living principle, a call to action, and a

demand that each generation reaffirm its connection to

the basic idea that is America — that we are a free people

who protect our freedoms by respecting the freedom of

others who differ from us.

64a

_ Our history as a nation reflects the history of the

Puritan, the Quaker, the Baptist, the Catholic, the Jew

and many others fleeing persecution to find religious

freedom in America. The United States remains the most

successful experiment in religious freedom that the world

has ever known because the First Amendment uniquely

balances freedom of private religious belief and

expression with freedom from state-imposed religious

expression.

Public schools can neither foster religion nor preclude

it. Our public schools must treat religion with fairness

and respect and vigorously protect religious expreSS!0n as

well as the freedom of conscience of all other students. In

so doing our public schools reaffirm the First Amendment

and enrich the lives of their students.

I encourage you to share this information widely and

in the most appropriate manner with your school

community. Please accept my sincere thanks {for your

continuing work on behalf of all of America’s children.

Sincerely,

s/_Richard W. Riley

Richard W. Riley

U.S. Secretary of Education

65a

RELIGIOUS EXPRESSION IN PUBLIC SCHOOLS

Student prayer and _ religious discussion: The

Establishment Clause of the First Amendment does not

prohibit purely private religious speech by students

Students therefore have the same mght to engage in

individual or group prayer and religious discussion during

the school day as they do to engage in other comparable

activity. For example, students may read their Bibles or

other scriptures, say grace before meals, and pray before

tests to the same extent they may engage in comparable

nondisruptive activ’ties. Local school authorities possess

substantial discretion to impose rules of order and other

pedagogical restrictions on student activities, but they

may not structure or administer such rules te

discriminate against religious activity or speech

Generally, students may pray in a nondisruptive

manner when not engaged in school activities or

instruction, and subject to the rules that normally pertain

in the applicable setting. Specifically, students in

informal settings, such as cafeterias and hallways, may

pray and discuss their religious views with each other,

subject to the same rules of order as apply to other

student activities and speech. Students may also speak to,

and attempt to persuade, their peers about religious

topics just as they do with regard to political topics

School officials, however, should intercede to stop student

speech that constitutes harassment aimed at a student or

a group of students.

Students may also participate in before or after school

events with religious content, such as “see you at the flag

pole” gatherings, on the same terms as they may

participate in other noncurriculum activities on school

66a

premises. School officials may neither discourage nor

encourage participation in such an event.

The right to engage in voluntary prayer or religious

discussion free from discriminati

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